United States of America v. Manuel Osman Nevarez- Cajigas

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL OSMAN NEVAREZ-
CAJIGAS,
Defendant - Appellant.
No. 11-10375
D.C. No. 4:11-cr-00565-CKJ
District of Arizona,
Tucson
ORDER
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
The government’s unopposed motion to recall the mandate and amend the
decision to alter the remedy is granted.
The mandate is recalled and the memorandum disposition filed on March 5,
2012, is withdrawn.
A replacement memorandum disposition is being filed concurrently with
this order, and the mandate shall reissue forthwith.
FILED
JAN 29 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
** The Honorable Ronald S.W. Lew, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL OSMAN NEVAREZ-
CAJIGAS,
Defendant - Appellant.
No. 11-10375
D.C. No. 4:11-cr-00565-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Ronald S.W. Lew,** District Judge, Presiding
Submitted February 21, 2012***
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Manuel Osman Nevarez-Cajigas appeals from the 13-month-and-one-day
FILED
JAN 29 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-10375 2
sentence imposed following his guilty-plea conviction for possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm without prejudice to an
application by Nevarez-Cajigas to the district court to vacate his sentence and
resentence him consistent with this decision.
Nevarez-Cajigas contends that the district court procedurally erred by failing
to calculate the applicable Sentencing Guidelines range at the outset of the
sentencing hearing, and by imposing a “standard” sentence rather than one based
upon the 18 U.S.C. § 3553(a) sentencing factors. We conclude that the district
court procedurally erred by failing to calculate the Guidelines range, and by failing
adequately to consider the § 3553(a) factors. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). Accordingly, Nevarez-Cajigas is entitled to be
resentenced. However, the district court cannot sentence Nevarez-Cajigas at this
time because he has been released and deported. We accordingly affirm the
sentence imposed by the district court, but do so without prejudice to an
application by Nevarez-Cajigas to the district court to vacate his sentence and
resentence him consistent with this decision at such time, if ever, that he is in this
country and available for resentencing. See United States v. Plancarte-Alvarez,
366 F.3d 1058, 1065 (9th Cir. 2004).

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11-10375 3
Nevarez-Cajigas’ motion to file an untimely reply brief is granted.
AFFIRMED.

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