United States v. Ernie Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2018
• Docket: 17-50098
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50098

Plaintiff-Appellant, D.C. No. 5:16-cr-00101-R

v. MEMORANDUM* ERNIE HERNANDEZ,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

The government appeals Ernie Hernandez’s 72-month sentence, which was

imposed following his guilty-plea conviction for conspiracy to possess with intent

to distribute and to distribute methamphetamine after being convicted of a felony

drug offense, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); 846. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing.

The government argues, and Hernandez concedes, that the district court

erred in sentencing Hernandez to a prison term below the 20-year mandatory-

minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing that a defendant

who violates section 841(a) “after a prior conviction for a felony drug offense has

become final . . . shall be sentenced to a term of imprisonment which may not be

less than 20 years”). We agree. This statutory minimum is mandatory, see United

States v. Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011), and Hernandez is not eligible

for any of the exceptions to the mandatory minimum, see 18 U.S.C. § 3553(e), (f).

Accordingly, on remand, the district court must impose a sentence of at least 240

months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii); Sykes, 658 F.3d at

1146.

VACATED and REMANDED for resentencing.

2 17-50098