U.S. Court of Appeals for the Ninth Circuit, 2017

United States v. Francisco Martinez-Diaz

United States v. Francisco Martinez-Diaz
U.S. Court of Appeals for the Ninth Circuit · Decided May 31, 2017 · Thomas, Silverman, Rawlinson
691 F. App'x 849

United States v. Francisco Martinez-Diaz

Opinion

MEMORANDUM **

Francisco Martinez-Diaz appeals from the district court’s judgment and challenges the 37-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United *850 States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C, § 1291, and we vacate and remand for resentenc-ing.

Martinez-Diaz contends that the district court erred by basing the sentence on an incorrect characterization of his criminal history. The record reflects that, while Martinez-Diaz had prior drug arrests, he did not sustain a drug conviction in 2006 or at any other time. However, the district court referred to a 2006 drug conviction, and Martinez-Diaz’s history of “drug trafficking,” in the course of explaining why a downward variance was .not warranted. Because there is a reasonable probability that the district court would have imposed a lower sentence had it not mistakenly believed that Martinez-Diaz had prior drug convictions, we vacate and remand for re-sentencing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (selection of sentence based on clearly erroneous facts constitutes procedural error).

VACATED and REMANDED for re-sentencing.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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