FILED
NOT FOR PUBLICATION JAN 05 2011
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. 09-50669
Plaintiff - Appellee, D.C. No. 3:09-cr-00866-JAH
v.
MEMORANDUM *
ROBERTO OLIVER-GUZMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Roberto Oliver-Guzman appeals from the 65-month sentence imposed
following his guilty-plea conviction for 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.
§ 1291, and we vacate and remand.
*
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).
Oliver-Guzman contends that the district court procedurally erred when it
did not consider his policy arguments against the 16-level enhancement under
U.S.S.G. § 2L1.2. The record indicates that the district court mistakenly believed
that it did not have the authority to reject the 16-level enhancement on policy
grounds. See Spears v. United States, 129 S.Ct. 840, 843-44 (2009) (per curiam);
United States v. Williams, 624 F.3d 1023, 1028 (9th Cir. 2010) (“[D]istrict judges
are at liberty to reject any Guideline on policy grounds . . . .”). We vacate and
remand for resentencing. See Moore v. United States, 129 S.Ct. 4, 5 (2008) (per
curiam).
VACATED and REMANDED.
2 09-50669