FILED
NOT FOR PUBLICATION AUG 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50209
Plaintiff - Appellee, D.C. No. 3:05-cr-01919-DMS
v.
JORGE ANTONIO AGUILA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted August 23, 2010 **
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Jorge Antonio Aguila appeals from the sentence imposed following
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
and we vacate and remand.
Aguila contends the district court abused its discretion by sentencing him
*
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).
based on an offense of unlawful sexual intercourse with a minor that never
occurred. We vacate and remand for resentencing because it is not clear from the
record whether the district court considered the non-existent offense in imposing
its sentence at the revocation hearing. See, e.g., United States v. Rodriguez-
Martinez, 25 F.3d 797, 800 n.3 (9th Cir. 1994) (remanding on another ground, but
stating that “the record is unclear as to whether the sentencing court considered a
1974 narcotics conviction to be evidence of Rodriguez’s recidivist nature”).
We do not reach Aguila’s remaining contention.
SENTENCE VACATED AND REMANDED.
2 10-50209