                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50175

                Plaintiff-Appellee,             D.C. No. 3:15-cr-03207-GPC

 v.
                                                MEMORANDUM*
FRANCISCO MARTINEZ-DIAZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Francisco Martinez-Diaz appeals from the district court’s judgment and

challenges the 37-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.

We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for


      *
             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).
resentencing.

      Martinez-Diaz contends that the district court erred by basing the sentence

on an incorrect characterization of his criminal history. The record reflects that,

while Martinez-Diaz had prior drug arrests, he did not sustain a drug conviction in

2006 or at any other time. However, the district court referred to a 2006 drug

conviction, and Martinez-Diaz’s history of “drug trafficking,” in the course of

explaining why a downward variance was not warranted. Because there is a

reasonable probability that the district court would have imposed a lower sentence

had it not mistakenly believed that Martinez-Diaz had prior drug convictions, we

vacate and remand for resentencing. See United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc) (selection of sentence based on clearly erroneous facts

constitutes procedural error).

       VACATED and REMANDED for resentencing.




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