United States v. Roberto Oliver-Guzman

407 F. App'x 241

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2011
• Docket: 09-50669
• Status: Unpublished

Opinion

MEMORANDUM **

Roberto Oliver-Guzman appeals from the 65-month sentence imposed following his guilty-plea conviction for 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.

Oliver-Guzman contends that the district court procedurally erred when it did not consider his policy arguments against the 16-level enhancement under U.S.S.G. § 2L1.2. The record indicates that the district court mistakenly believed that it did not have the authority to reject the 16-level enhancement on policy grounds. See Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam); United States v. Mitchell, 624 F.3d 1023, 1028 (9th Cir.2010) (“[District judges are at liberty to reject any Guideline on policy grounds....”). We vacate and remand for resentencing. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 5, 172 L.Ed.2d 1 (2008)(per curiam).

VACATED and REMANDED.

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