NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-10480
16-10481
Plaintiff-Appellee,
D.C. Nos. 2:16-cr-00172-DJH
v. 4:12-cr-02509-DJH
PEDRO GARCIA-BANOS, a.k.a. MEMORANDUM *
PEDRO BANOS-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
In these consolidated appeals, Pedro Garcia-Banos appeals the 70-month
sentence imposed following his guilty plea to reentry of a removed alien, in
violation of 8 U.S.C. § 1326, and consecutive 21-month sentence imposed upon
revocation of supervised release. 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and we vacate and remand for resentencing.
Garcia-Banos contends that the district court failed to appreciate its
discretion to impose a partially concurrent sentence. At sentencing, Garcia-Banos
requested that the court run his sentences partially concurrently. The government
responded that it doubted the lawfulness of a partially concurrent sentence. The
court did not resolve the dispute so we cannot determine whether the district court
understood its discretion to impose a partially concurrent sentence. See U.S.S.G.
§ 5G1.3(d) & cmt. n.4(C) (district court may impose sentence on a new offense to
run consecutively, concurrently, or partially concurrently to undischarged term of
imprisonment resulting from revocation of supervised release). Under these
circumstances, we vacate Garcia-Banos’s sentence and remand for resentencing.
See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011).
VACATED and REMANDED for resentencing.
2 16-10480 & 16-10481