United States v. Manuel Burciaga ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10042
Plaintiff-Appellee, D.C. No. 1:06-cr-00269-LJO-1
v.
MEMORANDUM*
MANUEL BURCIAGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Manuel Burciaga appeals from the district court’s judgment and challenges
the 60-month sentence imposed upon his second revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for
resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Burciaga contends that the district court committed procedural error by
failing to: make an individualized determination of the sentence, instead relying
only on its earlier promise that a violation of supervised release would result in the
imposition of the statutory maximum term; consider the relevant sentencing
factors; and explain the sentence adequately. He also argues that his sentence is
substantively unreasonable. We need not resolve these claims because we
conclude that remand is required on a different basis. As the government pointed
out in footnote two of its answering brief, the district court did not address the
government during the revocation hearing, which deprived the court of “the benefit
of the government’s assessment of the proper sentence in this case.” While the
government did not say so explicitly, this was error under Federal Rule of Criminal
Procedure 32.1. See United States v. Urrutia–Contreras, 782 F.3d 1110, 1114 (9th
Cir. 2015) (Rule 32.1 requires the district court “to solicit the government’s
position with respect to sentencing for violation of the terms of supervised
release”). Moreover, the error was prejudicial. The government states that, were
the case to be remanded, it would concur with probation’s recommendation for a
within-Guidelines, 12-month sentence, which is also the sentence Burciaga
originally requested. Because the district court might have imposed a lower
sentence had it been urged by the government, in addition to Burciaga and
probation, to impose a sentence four years shorter than the one it did, we conclude
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that the Rule 32.1 error was not harmless. See id. (error in not inviting government
to speak at revocation sentencing is not harmless if the district court had discretion
to impose a lower sentence and the government’s argument might have “add[ed]
substantially to the persuasiveness of a defendant’s sentencing argument”).
Accordingly, we vacate the judgment and remand for resentencing.
VACATED and REMANDED for resentencing.
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