Opinion
No. 06-50542.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 16, 2007.
Jeffrey Schenk, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
John C. Lemon, Esq., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Gordon Thompson, Jr., Senior District Judge, Presiding. D.C. No. CR-06-00734-GT.
Before: LEAVY, THOMAS, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jorge Sanchez appeals from the three-year sentence imposed following his guilty-plea conviction to one count of possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate Sanchez's sentence and remand for re-sentencing.
Sanchez contends that the district court erred by imposing a two-level upward adjustment pursuant to U.S.S.G. § 3B1.4 for using a minor to commit a crime. We conclude that the district court did not clearly err in finding that Sanchez affirmatively used his children in his crime. See United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th Cir. 2001).
Sanchez also contends that the district court erred by failing to consider the relevant actors in determining his minor role adjustment pursuant to U.S.S.G. § 3B1.2. Sanchez testified that he was paid by a supplier and the drugs were to be picked up by a distributor. Accordingly, we conclude that the district court erred by failing to consider Sanchez's culpability in relation to these other co-participants that were named in the record. See United States v. Rojas-Millan, 234 F.3d 464, 472-74 (9th Cir. 2000).
Because we vacate and remand, we do not address Sanchez's remaining contentions. We note however, that it is unclear which probation-recommended Guidelines range the district court adopted. See United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).