United States v. Roberto Varelas-Garcia

585 F. App'x 630

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2014
• Docket: 13-50569
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant Roberto Varelas-Garcia appeals his 51-month sentence following a guilty plea to one count of being a deported alien found in the United States after removal, in violation of 8 U.S.C. § 1326. For the reasons that follow, we vacate the sentence and remand for resentencing on an open record.

1. California Health and Safety Code section 11351 is “divisible” within the meaning of Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). United States v. de la Torre-Jimenez, No. 13-50438, 771 F.3d 1163, 2014 WL 5786715 (9th Cir. Nov. 7, 2014). Accordingly, the modified categorical approach applies.

2. The district court plainly erred by failing to conduct an independent modified categorical approach, as described in United States v. Castillo-Marin, 684 F.3d 914 (9th Cir.2012). What we wrote in that case applies equally here: “We can understand the frustration of district judges who sentence a defendant on a record to which no objection was made only to have to later revisit the matter because the government failed to do its job. Relying solely on the factual description in the PSR, however, was plain error.” Id. at 921 (internal quotation marks omitted).

3.As in Castillo-Marin, 684 F.3d at 927, we remand on an open record. We are not persuaded to depart from our “general rule” that we remand on an open record. United States v. Espinoza-Morales, 621 F.3d 1141, 1152 (9th Cir.2010).

Sentence VACATED; case REMANDED for resentencing on an open record.

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