NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50551
Plaintiff - Appellee, D.C. No. 2:12-CR-00762-RGK-1
v.
MEMORANDUM*
BENJAMIN AVILA BARRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 5, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Benjamin Avila Barrera (“Barrera”) appeals his 57-month sentence for
illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(2). We have
jurisdiction under 18 U.S.C. § 3742 and 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 district court did not comply with Federal Rule of Criminal Procedure
32(i)(3)(B), which requires that “[a]t sentencing, the court . . . must—for any
disputed portion of the presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary either because the matter will
not affect sentencing, or because the court will not consider the matter in
sentencing.” We “have mandated strict compliance with Rule 32, explaining that
the rulings must be express or explicit.” United States v. Doe, 705 F.3d 1134,
1153 (9th Cir. 2013) (quotation marks and citations omitted).
The district court’s error in not complying with Rule 32(i)(3)(B) meets the
plain error standard. Doe, 705 F.3d at 1156. First, the error was plain. The
district court did not make any findings or rulings on Barrera’s criminal history
objection to the PSR. This error also affected Barrera’s substantial rights and
seriously affected the fairness of the proceedings because his objection, “which
could substantially affect his ultimate sentence, w[as] never considered or ruled
upon.” Id.
Because we have found Rule 32 error, the appropriate remedy is to vacate
Barrera’s sentence and to remand for resentencing. See, e.g., Doe, 705 F.3d
1156–57; United States v. Standard, 207 F.3d 1136, 1142–43 (9th Cir. 2000);
United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc)
2
(“[W]hen the defendant challenges the factual accuracy of any matters contained in
the presentence report, the district court must, at the time of sentencing, make the
findings or determinations required by Rule 32. If the district court fails to make
the required findings or determinations, the sentence must be vacated and the
defendant resentenced.”). We therefore do not reach the issue of whether the
record supports the criminal history enhancement and leave that determination for
the district court on remand.
We reject Barrera’s constitutional challenge to the felony and aggravated
felony enhancements in 8 U.S.C. § 1326(b)(1) and (b)(2). The Supreme Court has
foreclosed this very argument in Almendarez-Torres v. United States, 523 U.S. 224
(1998), and Almendarez-Torres remains good law. United States v. Bustos-Ochoa,
704 F.3d 1053, 1057 (9th Cir. 2012) (per curiam) (citing United States v. Leyva-
Martinez, 632 F.3d 568, 569–79 (9th Cir. 2011) (per curiam)).
VACATED and REMANDED.
3
FILED
U.S. v. Barrera, No. 12-50551 JAN 30 2014
Rawlinson, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that Benjamin Avila-Barrera’s constitutional
challenge to 8 U.S.C. § 1326 lacks merit. However, I do not agree with the
majority’s conclusion that the district court committed plain error by failing to
comply with Rule 32 of the Federal Rules of Criminal Procedure.
Barrera now challenges the criminal history calculation used to determine
his sentence on the basis that his failure to register as a sex offender was relevant
conduct to his illegal reentry offense. It is this challenge that the majority faults
the district court for failing to resolve. However, Avila-Barrera did not raise a
factual issue regarding his assertion that his failure to register as a sex offender was
relevant conduct to his illegal reentry offense. Avila-Barrera did not submit an
affidavit or declaration stating why he failed to register as a sex offender. At the
sentencing hearing, he did not testify to that effect or address the court at all. That
failure leaves us with the bare assertion, unsupported by any factual showing, that
Avila-Barrera failed to register as a sex offender to avoid detection as an illegal re-
entrant. That assertion was addressed and rejected by the probation department.
The district court’s adoption of the criminal history as calculated by the probation
department was sufficient resolution of the issue to satisfy Rule 32. See United
1
States v. Riley, 335 F.3d 919, 931 (9th Cir. 2003); see also United States v. Rivera-
Gomez, 634 F.3d 507, 513 (9th Cir. 2011) (relying on the facts established in the
record to determine the purpose of an offender’s conduct).
I would affirm the conviction and sentence.
2