United States v. Jose Mosqueda

FILED
NOT FOR PUBLICATION JAN 05 2012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. 10-50244

Plaintiff - Appellee, D.C. No. 2:09-cr-01259-RGK

v.
MEMORANDUM *
JOSE CASTRO MOSQUEDA, a.k.a. Jose
Lopez, a.k.a. Jose Gonzales Mosqueda,
a.k.a. Javier Castro Mosqueda,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Submitted December 19, 2011 **

Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

Jose Castro Mosqueda appeals from the 37-month sentence imposed

following his guilty-plea conviction for being an illegal alien found in the United

*
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).
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we vacate and remand.

The district court applied a 12-level sentencing enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(B) based on Mosqueda’s alleged 1994 drug trafficking

conviction. Mosqueda disputed that he was convicted. In applying the

enhancement, the district court appeared to rely on the presentence report and a

state docket reflecting the 1994 conviction. The only evidence in the record on

appeal of Mosqueda’s alleged conviction for possession of cocaine base for sale is

the contested presentence report, which is insufficient to support the enhancement.

See United States v. Snipe, 515 F.3d 947, 955 (9th Cir. 2008) (when a defendant

objects to a presentence report’s factual findings, the court may not simply rely on

the factual statements in the PSR to find that the government has carried its

burden).

Because the state docket is not part of the district court or appellate record,

we are unable to determine precisely what information the district court relied on

in making its determination. We consequently are unable to determine whether

that information was properly relied on, and whether the 12-level enhancement was

supported by clear and convincing evidence. See United States v. Jordan, 256 F.3d

922, 928 (9th Cir. 2001) (where factual findings underlying a sentencing

2 10-50244
enhancement create a “disproportionate impact” on the defendant’s sentence, those

findings must be supported by clear and convincing evidence).

Accordingly, we remand for further findings to clarify the basis of the

district court’s application of the sentencing enhancement, and for the district court

to determine whether the government met its burden of proving the sentencing

enhancement applies under the clear and convincing standard.

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062

(9th Cir. 2000), upon remand the district court is instructed to delete from the

judgment the reference to section 1326(b). See United States v. Herrera-Blanco,

232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to

section 1326(b)).

We need not reach Mosqueda’s challenge to the substantive reasonableness

of his sentence in light of our disposition.

VACATED; REMANDED.

3 10-50244