United States of America v. Francisco Flores-Babichi

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
AK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO FLORES-BABICHI,
Defendant - Appellant.
Nos. 08-10508 & 08-10510
D.C. Nos. 4:08-cr-00274-DCB
4:98-cr-00808-DCB
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
In these consolidated appeals, Francisco Flores-Babichi appeals from the
77-month sentence imposed following his guilty-plea conviction for illegal reentry
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

AK/Research 08-10508 & 08-10510 2
after deportation, in violation of 8 U.S.C. § 1326, and the 18-month consecutive
sentence imposed following the revocation of the supervised release term he was
serving for a prior guilty-plea conviction. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we vacate the sentence and remand for resentencing.
Flores-Babichi contends that the district court procedurally erred by failing
to calculate the Guidelines range, by treating the Guidelines as mandatory and/or
assigning them too much weight, and by focusing on only one of the 18 U.S.C. §
3553(a) sentencing factors, to the exclusion of the remaining factors. The record
reflects that the district court did not procedurally err. See Gall v. United States,
128 S. Ct. 586, 596-97 (2007); see also United States v. Simtob, 485 F.3d 1058,
1062-63 (9th Cir. 2007).
Flores-Babichi also contends that the sentence imposed was substantively
unreasonable because it was greater than necessary to accomplish the purposes of
sentencing, and because the district court used a stale conviction to enhance his
sentence. We remand to the district court for reconsideration of the sentence in
light of United States v. Amezcua-Vasquez, 567 F.3d 1050, 1057-58 (9th Cir. 2009)
(holding that it may be an abuse of discretion to impose a sentence that is largely
predetermined by a 16-level enhancement without accounting for the staleness of

-- 2 of 3 --

AK/Research 08-10508 & 08-10510 3
the prior conviction and the defendant’s lack of other convictions for violent
crimes).
SENTENCE VACATED; REMANDED FOR RESENTENCING.

-- 3 of 3 --