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United States v. Garcia-Garcia

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Oct 10, 2012
485 F. App'x 236 (9th Cir. 2012)

Opinion

No. 11-50544 D.C. No. 3:10-cr-02961-GT

10-10-2012

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERTO GARCIA-GARCIA, a.k.a. Enrique Garcia-Garcia, Defendant - Appellant.


NOT FOR PUBLICATION


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Appeal from the United States District Court

for the Southern District of California

Gordon Thompson, Jr., District Judge, Presiding

Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

Roberto Garcia-Garcia appeals from the 57-month sentence imposed following his guilty-plea conviction to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

The parties agree, and we concur, that the district court erred in imposing a 16-level increase in Garcia-Garcia's base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i), because the documentation submitted by the government did not provide clear and convincing evidence that Garcia-Garcia had a prior drug-trafficking conviction. See United States v. Bonilla-Montenegro, 331 F.3d 1047, 1050 (9th Cir. 2003) (government must prove prior conviction by clear and convincing evidence when it seeks a 16-level sentencing enhancement).

Accordingly, we vacate the judgment and remand for resentencing. Given the government's representation that the documents in the record are the only available documents concerning Garcia-Garcia's prior offense, on remand the district court is directed to calculate the advisory Sentencing Guidelines range by applying an enhancement of no more than eight levels under U.S.S.G. § 2L1.2(b).

Garcia-Garcia's request for judicial notice is granted.

The clerk shall issue the mandate forthwith.

VACATED and REMANDED.


Summaries of

United States v. Garcia-Garcia

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Oct 10, 2012
485 F. App'x 236 (9th Cir. 2012)
Case details for

United States v. Garcia-Garcia

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERTO GARCIA-GARCIA…

Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Oct 10, 2012

Citations

485 F. App'x 236 (9th Cir. 2012)