United States v. Manuel Burciaga

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2020
• Docket: 20-10042
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10042

Plaintiff-Appellee, D.C. No. 1:06-cr-00269-LJO-1

v. MEMORANDUM* MANUEL BURCIAGA,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Manuel Burciaga appeals from the district court’s judgment and challenges

the 60-month sentence imposed upon his second revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for

resentencing.

* 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). Burciaga contends that the district court committed procedural error by

failing to: make an individualized determination of the sentence, instead relying

only on its earlier promise that a violation of supervised release would result in the

imposition of the statutory maximum term; consider the relevant sentencing

factors; and explain the sentence adequately. He also argues that his sentence is

substantively unreasonable. We need not resolve these claims because we

conclude that remand is required on a different basis. As the government pointed

out in footnote two of its answering brief, the district court did not address the

government during the revocation hearing, which deprived the court of “the benefit

of the government’s assessment of the proper sentence in this case.” While the

government did not say so explicitly, this was error under Federal Rule of Criminal

Procedure 32.1. See United States v. Urrutia–Contreras, 782 F.3d 1110, 1114 (9th

Cir. 2015) (Rule 32.1 requires the district court “to solicit the government’s

position with respect to sentencing for violation of the terms of supervised

release”). Moreover, the error was prejudicial. The government states that, were

the case to be remanded, it would concur with probation’s recommendation for a

within-Guidelines, 12-month sentence, which is also the sentence Burciaga

originally requested. Because the district court might have imposed a lower

sentence had it been urged by the government, in addition to Burciaga and

probation, to impose a sentence four years shorter than the one it did, we conclude

2 20-10042 that the Rule 32.1 error was not harmless. See id. (error in not inviting government

to speak at revocation sentencing is not harmless if the district court had discretion

to impose a lower sentence and the government’s argument might have “add[ed]

substantially to the persuasiveness of a defendant’s sentencing argument”).

Accordingly, we vacate the judgment and remand for resentencing.

VACATED and REMANDED for resentencing.

3 20-10042