United States v. Flores-Pimienta

197 F. App'x 688

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2006
• Docket: No. 05-50664
• Status: Published

Opinion

MEMORANDUM

**

Roberto Flores-Pimienta appeals his conviction and sentence for illegal re-entry after deportation under 8 U.S.C. § 1826. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm his conviction, vacate his sentence and remand for resentencing.

A removal effectuated either by an order of removal or by the reinstatement of an order of removal constitutes a removal under 8 U.S.C. § 1826. Cf. United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th Cir.2003) (discussing 8 U.S.C. § 1326(b)); United States v. Carrillo-Lopez, 313 F.3d 1185, 1187 (9th Cir.2002) (same). Therefore, the factual basis for Flores-Pimienta’s plea was adequate, and we must uphold his conviction.

To determine the existence of a prior conviction, the district court may rely on “any information ... so long as it has sufficient indicia of reliability to support its probable accuracy.” See United States v. Marin-Cuevas, 147 F.3d 889, 894-95 (9th Cir.1998) (internal alterations omitted) (emphasis added). In the present circumstances, both the unchallenged presentence report and the judgments of conviction were sufficiently reliable. Id, at 895 (holding that a presentence report that is challenged only as insufficient proof constituted sufficient evidence); United States v. Carroll, 932 F.2d 823, 825 (9th Cir.1991) (“In the absence of other evidence, the court records ... must be presumed to be correct.”). Therefore, the district court properly calculated Flores-Pimienta’s criminal history category.¹

Nevertheless, we are compelled to conclude that the district court imposed a sentence that was unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our recent precedent makes clear that the consideration of the sentencing factors set forth in 18 U.S.C. § 3553 is mandatory. United States v. Diaz-Argueta, 447 F.3d 1167, 1171 (9th Cir.2006) (citing Booker, 543 U.S. at 261, 125 S.Ct. 738). “This requirement does not necessitate a specific articulation of each factor separately, but rather a showing that the district court considered the statutorily-designated factors in imposing a sentence.” United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.2006); see also United States v. Mix, 442 F.3d 1191, 1196-97 (9th Cir.2006). Here, there was no such showing. Apart from the Sentencing Guidelines, the district court was absolutely silent as to the factors listed in § 3553(a). Even careful consideration of the presentence report and the arguments presented by the government and the defendant will not cure such an error. Diaz-Argueta, 447 F.3d at 1171-72.

Accordingly, Flores’s conviction is AFFIRMED. The sentence is VACATED, and the case is REMANDED for resentencing.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1 . We note that the limits imposed by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005), are inapplicable in the instant case. Shepard merely limits the range of documents upon which the court may rely in determining whether a prior conviction is a predicate offense under the modified categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which is not at issue here. Shepard, 125 S.Ct. at 1257, 1259-60.