FILED
NOT FOR PUBLICATION
DEC 30 2011
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10575
Plaintiff - Appellee, D.C. No. 2:04-cr-00470-FCD
v.
MEMORANDUM *
SALVADOR GARCIA-REAL, a.k.a.
Antonio Garcia, a.k.a. Salvador Real-
Garcia,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Salvador Garcia-Real appeals from the 24-month sentence imposed
following revocation of supervised release. We have jurisdiction under
28 U.S.C. § 1291, and we vacate and remand.
Garcia-Real contends that the court failed to explain sufficiently why it
elected to impose a sentence of imprisonment in his supervised release case. This
*
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).
argument is meritless. The record makes clear that the court explained its decision,
which was consistent with U.S.S.G. § 7B1.3(a)(1) and (f).
Garcia-Real also contends that the court failed to address his arguments
regarding breach of trust and cultural assimilation. The court entertained and
responded adequately to his arguments. See United States v. Perez-Perez, 512 F.3d
514, 516 (9th Cir. 2008).
Garcia-Real also argues that the district court relied on an inaccurate
characterization of his criminal history in selecting a sentence. This contention has
merit. 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). The record reflects that the district court selected the sentence based in part
on its understanding that Garcia-Real repeatedly engages in dangerous criminal
conduct following his illegal reentries, an understanding that is refuted by the
record. (See PSR ¶¶ 20-34, 43, 65.) Because Garcia-Real’s substantial rights were
affected by the error and because the error seriously affects the fairness of the
proceedings, we exercise our discretion to remand. See United States v. Olano,
507 U.S. 725, 734-36 (1993). Our resolution of this issue renders it unnecessary to
reach Garcia-Real’s arguments regarding staleness and due process.
VACATED and REMANDED.
2 10-10575