United States v. Roberto Garcia-Garcia

485 F. App'x 236

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2012
• Docket: 11-50544
• Status: Unpublished

Opinion

MEMORANDUM **

Roberto Garcia-Garcia appeals from the 57-month sentence imposed following his guilty-plea conviction to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

The parties agree, and we concur, that the district court erred in imposing a 16-level increase in Garcia-Garcia’s base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i), because the documentation submitted by the government did not provide clear and convincing evidence that Garcia-Garcia had a prior drug-trafficking conviction. See United States v. Bonilla-Montenegro, 331 F.3d 1047, 1050 (9th Cir.2003) (government must prove pri- or conviction by clear and convincing evidence when it seeks a 16-level sentencing enhancement).

Accordingly, we vacate the judgment and remand for resentencing. Given the government’s representation that the documents in the record are the only available documents concerning Garcia-Garcia’s pri- or offense, on remand the district court is directed to calculate the advisory Sentencing Guidelines range by applying an enhancement of no more than eight levels under U.S.S.G. § 2L1.2(b).

Garcia-Garcia’s request for judicial notice is granted.

The clerk shall issue the mandate forthwith.

VACATED and REMANDED.

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