United States of America v. Luis Hernandez-Sanches

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS HERNANDEZ-SANCHES,
Defendant - Appellant.
No. 09-50051
D.C. No. 3:08-CR-03122-GT-1
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Argued and Submitted November 3, 2009
Pasadena, California
Before: GOULD and BEA, Circuit Judges, and MOLLOY, District Judge.**
Luis Hernandez-Sanches appeals the forty-two-month sentence imposed
following his guilty plea to being a deported alien found in the United States in
violation of 8 U.S.C. § 1326. The presentence report recommended a two-level
FILED
NOV 24 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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upward adjustment to Hernandez-Sanches’s criminal history score under U.S.
Sentencing Guidelines § 4A1.1(d) because Hernandez-Sanches was under a
criminal justice sentence at the time of the offense. Hernandez-Sanches objected to
the adjustment, arguing that he was not under a “violation warrant” within the
meaning of the relevant Guidelines application note. See U.S.S.G. § 4A1.1 cmt.
n.4 (“A defendant who commits the instant offense while a violation warrant from
a prior sentence is outstanding (e.g., a probation, parole, or supervised release
violation warrant) shall be deemed to be under a criminal justice sentence for the
purposes of this provision[.]”) (emphases added). The district court did not make
an explicit finding about whether Hernandez-Sanches was subject to a violation
warrant, as opposed to a warrant for a new crime, because it took the view that “a
warrant is a warrant” for federal sentencing purposes.
Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court to
rule on “any disputed portion of the presentence report or other controverted
matter” that will affect sentencing. For each disputed fact, “the district court must
make an explicit factual finding that resolves the dispute.” United States v. Carter,
219 F.3d 863, 867 (9th Cir. 2000). “It is well settled in this circuit that when the
district court fails to make the required Rule 32 findings or determinations at the
time of sentencing, we must vacate the sentence and remand for resentencing.” Id.
at 866 (alteration and internal quotation marks omitted); see also United States v.

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Houston, 217 F.3d 1204, 1207 (9th Cir. 2000) (“Our precedent requires strict
compliance with Rule 32.”) (internal quotation marks omitted). Because the
district court did not make an explicit finding about whether the Virginia warrant
was a violation warrant, a remand for resentencing is necessary.
The sentence is VACATED and the case is REMANDED.

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