United States v. Mendez-Guadarrama

101 F. App'x 259

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2004
• Docket: No. 03-10219; D.C. No. CR-02-01833-FRZ
• Status: Published

Opinion

MEMORANDUM

**

Miguel Angel Mendez-Guadarrama appeals the 46-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) — (b). We have jurisdiction pursuant to 18 U.S.C. § 3742, and we vacate and remand for resentencing. We review de novo a district court’s determination that it lacked discretion to depart from the Sentencing Guidelines. See United States v. Rodriguez-Lopez, 198 F.3d 773, 775 (9th Cir.1999).

Mendez-Guadarrama contends that the district court erred by denying his request for a four-level downward departure for substantial savings to the government because it erroneously believed it lacked discretion to grant his request absent a government plea offer. Because we cannot determine from the record whether the district court was aware it had discretion to depart absent a government plea offer, we remand for clarification on this question. See id. at 776-78; United States v. Dickey, 924 F.2d 836, 839 (9th Cir.1991).

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.