United States v. Resendez-Garcia

52 F. App'x 60

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 4, 2002
• Docket: No. 02-50273; D.C. No. CR-01-00994-ER-1
• Status: Published

Opinion

MEMORANDUM

**

Mario Resendez-Garcia appeals the sentence imposed following his guilty plea to one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841, and one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

Resendez-Garcia and the government agree that the district court erred by imposing a one-level reduction for minor role in the offense, where the Sentencing Guidelines permit only two-level, three-level, or four-level minor role reductions. U.S.S.G. § 3B1.2. The parties also agree that the case should be remanded for re-sentencing. Resendez-Gareia argues that the district court should be instructed on remand to apply the two-level reduction. The government argues that the district court should be instructed to determine whether Resendez-Gareia is entitled to the two-level reduction or no reduction. Following United States v. Jeter, 236 F.3d 1032, 1034-35 (9th Cir.2001), we vacate the sentence and remand for the district court to consider whether Resendez-Gareia deserves a two-level downward adjustment or none at all.

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.