FILED
NOT FOR PUBLICATION DEC 31 2012
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. 11-50192
Plaintiff - Appellee, D.C. No. 3:10-cr-02027-MMA
v.
MEMORANDUM *
JUAN CARLOS HERNANDEZ-
HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Juan Carlos Hernandez-Hernandez appeals from the district court’s
judgment and challenges the 51-month sentence imposed following his guilty-plea
conviction for three counts of bringing in illegal aliens for financial gain and aiding
*
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).
and abetting, in violation of 8 U.S.C. §§ 2 and 1324(a)(2)(B)(ii); and three counts
of bringing in illegal aliens without presentation, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291, and we vacate
and remand.
Hernandez-Hernandez contends that the district court procedurally erred by
failing to consider the 18 U.S.C. § 3553(a) sentencing factors when imposing
sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e). This
contention is foreclosed by United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir.
2009).
Hernandez-Hernandez also contends that he was denied his right of
allocution under Fed. R. Crim. P. 32(i)(4)(A)(ii). We agree with the parties that
the district court failed to afford Hernandez-Hernandez the right to allocute at
sentencing, and that the error was not harmless because the court could have
imposed a shorter sentence by departing further under U.S.S.G. § 5K1.1. See
United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005). Accordingly, we
vacate the sentence and remand for resentencing so that the district court may
afford Hernandez-Hernandez the opportunity to allocute.
VACATED and REMANDED.
2 11-50192