NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10466
Plaintiff-Appellee, D.C. No.
3:11-cr-00131-LRH-VPC-2
v.
ENRIQUE BUENROSTRO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted September 15, 2016
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Defendant Enrique Buenrostro appeals the district court’s orders denying the
parties’ joint stipulation for a sentence reduction and his motion to reconsider. We
have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
After a guilty plea to a single count of heroin distribution near a school and
aiding and abetting, Buenrostro received a sentence of 78 months of imprisonment.
He later moved for a sentence reduction following a retroactive change to the U.S.
Sentencing Guidelines. The parties agree that Buenrostro is statutorily eligible for
a sentence reduction under Amendment 782, and they agree on his new guideline
range under the Amendment. The district court declined to reduce Buenrostro’s
sentence under the revised guideline range, ruling that the original 78-month
sentence was reasonable on the basis of several factors. Because our precedent
required the district court to provide some explanation for rejecting a defendant’s
non-frivolous arguments about post-sentencing rehabilitation, we vacate and
remand for resentencing.
“A district court is required to ‘consider’ the § 3553(a) factors both in the
initial imposition of a sentence and in any subsequent reduction of a sentence after
the modification of a guidelines range by the Sentencing Commission.” United
States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (citing 18 U.S.C. § 3582(a);
18 U.S.C. § 3582(c)(2)). “[P]ost-sentencing or post-offense rehabilitation—
particularly in light of its tendency to reveal a defendant’s likelihood of future
criminal conduct—[is] a critical factor to consider in the imposition of a sentence.”
Id. at 1010. “[W]hile a district judge need not enumerate every factor supporting a
particular sentence, ‘[a] statement of reasons is important. The sentencing judge
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should set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.’” Id. (quoting Rita v. United States, 551 U.S. 338, 356
(2007)). “[A] mere statement that the judge had read the papers” is not, “by itself
and automatically, sufficient as an explanation of the judge’s treatment of the
§ 3553(a) factors.” Id.
Here, the district court’s order denying reconsideration said nothing about
Buenrostro’s post-sentencing conduct.1 Instead, it focused exclusively on his prior
criminal history. The government argues that the district court did consider
Buenrostro’s arguments but found them to be outweighed by the negative factors
set forth in its orders. In support, the government points to the district court’s
introductory statement—“Before the Court is Defendant Enrique Buenrostro’s [ ]
Motion for Reconsideration of the Court’s Order Denying the Joint Stipulation for
a Reduction of Sentence.” But under Trujillo, this is not enough. See id. (holding
that a statement that the judge had read the papers is not, “by itself and
1
An abbreviated summary of Buenrostro’s post-sentencing history was before the
court at the time of its original ruling. Because the parties had stipulated to a
sentence reduction, Buenrostro did not originally present any evidence of his
rehabilitation to the district court. Consequently, the district court’s first order
could not have considered most of his post-sentencing conduct. In its order
denying reconsideration, the district court did not fault Buenrostro for failing to
submit more supporting materials with the parties’ stipulation, nor did the court
otherwise suggest that any issue had thereby been waived.
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automatically, sufficient as an explanation of the judge’s treatment of the § 3553(a)
factors”).
Because this procedural error requires us to vacate and remand for
resentencing, we do not reach Buenrostro’s other arguments.
For the foregoing reasons we VACATE and REMAND FOR
RESENTENCING.
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