United States of America v. Roberto Garcia-Garcia, a.k.a. Enrique Garcia-Garcia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO GARCIA-GARCIA, a.k.a.
Enrique Garcia-Garcia,
Defendant - Appellant.
No. 11-50544
D.C. No. 3:10-cr-02961-GT
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
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.
FILED
OCT 10 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50544 2
§ 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 prior 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 prior 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.

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