United States of America v. Jorge Antonio Aguila

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE ANTONIO AGUILA,
Defendant - Appellant.
No. 10-50209
D.C. No. 3:05-cr-01919-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted August 23, 2010**
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
Jorge Antonio Aguila appeals from the sentence imposed following
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
and we vacate and remand.
Aguila contends the district court abused its discretion by sentencing him
FILED
AUG 24 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-50209 2
based on an offense of unlawful sexual intercourse with a minor that never
occurred. We vacate and remand for resentencing because it is not clear from the
record whether the district court considered the non-existent offense in imposing
its sentence at the revocation hearing. See, e.g., United States v. Rodriguez-
Martinez, 25 F.3d 797, 800 n.3 (9th Cir. 1994) (remanding on another ground, but
stating that “the record is unclear as to whether the sentencing court considered a
1974 narcotics conviction to be evidence of Rodriguez’s recidivist nature”).
We do not reach Aguila’s remaining contention.
SENTENCE VACATED AND REMANDED.

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