United States v. Juan Hernandez-Hernandez

503 F. App'x 517

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2012
• Docket: 11-50192
• Status: Unpublished

Opinion

MEMORANDUM **

Juan Carlos Hernandez-Hernandez appeals from the district court’s judgment and challenges the 51-month sentence imposed following his guilty-plea conviction for three counts of bringing in illegal aliens for financial gain and aiding and abetting, in violation of 8 U.S.C. §§ 2 and 1324(a)(2)(B)(ii); and three counts of bringing in illegal aliens without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Hernandez-Hernandez contends that the district court procedurally erred by failing to consider the 18 U.S.C. § 3553(a) sentencing factors when imposing sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e). This contention is foreclosed by United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir.2009).

Hernandez-Hernandez also contends that he was denied his right of allocution under Fed.R.Crim.P. 32(i)(4)(A)(ii). We agree with the parties that the district court failed to afford Hernandez-Hernandez the right to allocute at sentencing, and that the error was not harmless because the court could have imposed a shorter sentence by departing further under U.S.S.G. § 5K1.1. See United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005). Accordingly, we vacate the sentence and remand for resentencing so that the district court may afford Hernandez-Hernandez the opportunity to allocute.

VACATED and REMANDED.

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