Opinion
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding.
Before BROWNING, KOZINSKI, and BERZON, Circuit Judges.
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Leonardo Osorio-Munoz appeals his 51-month sentence imposed following his guilty plea conviction for conspiracy to distribute and distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review de novo the district court's interpretation and application of the Sentencing Guidelines, United States v. Colussi, 22 F.3d 218, 219 (9th Cir.1994), and we vacate and remand.
Osorio-Munoz contends that the district court erred by denying him a one-level adjustment for acceptance of responsibility pursuant to U.S. S.G. § 3E1.1(b).
Because the district court granted the two-level adjustment under § 3E1.1(a), the additional one-level adjustment was mandatory if Osorio-Munoz met the requirements of § 3E1.1(b). See Colussi, 22 F.3d at 219-20. Here, the district court erroneously believed that granting the § 3E1.1(b) adjustment was contingent upon the government's approval of such an adjustment. The government concedes that the district court erred in this regard, but contends that any such error was harmless because Osorio-Munoz did not meet the criteria of either subsection (b)(1) or (b)(2).
However, because the district court treated the decision as discretionary instead
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of mandatory, it failed to make sufficient factual findings concerning Osorio-Munoz's eligibility for the § 3E1.1(b) adjustment to allow us to conclude that the error was harmless. We therefore vacate Osorio-Munoz's sentence, and remand for the district court to determine whether Osorio-Munoz is eligible for the additional one-level adjustment pursuant to § 3E1.1(b)(1) or (b)(2).
We decline to review on direct appeal Osorio-Munoz's ineffective assistance of counsel claim because it requires development of facts not currently in the record. See United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000). The district court on remand may consider all evidence relevant to the determination of whether Osorio-Munoz satisfied the requirements of § 3E1.1(b). See United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc).
VACATED AND REMANDED.