United States v. Roberto Varelas-Garcia , 585 F. App'x 630 ( 2014 )


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  •                             NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                          NOV 07 2014
    FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                        No. 13-50569
    Plaintiff - Appellee,              D.C. No. 3:13-cr-01983-JAH-1
    v.
    MEMORANDUM*
    ROBERTO VARELAS-GARCIA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, District Judge, Presiding
    Argued and Submitted October 8, 2014
    Pasadena, California
    Before: EBEL,** KLEINFELD, and GRABER, Circuit Judges.
    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.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable David M. Ebel, Senior Circuit Judge for the United States
    Court of Appeals for the Tenth Circuit, sitting by designation.
    1. California Health and Safety Code section 11351 is "divisible" within the
    meaning of Descamps v. United States, 
    133 S. Ct. 2276
    (2013). United States v.
    De La Torre-Jimenez, No. 13-50438 (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.
    2
    

Document Info

Docket Number: 13-50569

Citation Numbers: 585 F. App'x 630

Filed Date: 11/7/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023