                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          NOV 07 2014

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS



UNITED STATES OF AMERICA,                        No. 13-50569

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01983-JAH-1

  v.
                                                 MEMORANDUM*
ROBERTO VARELAS-GARCIA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                       Argued and Submitted October 8, 2014
                               Pasadena, California

Before: EBEL,** KLEINFELD, and GRABER, Circuit Judges.

       Defendant Roberto Varelas-Garcia appeals his 51-month sentence following

a guilty plea to one count of being a deported alien found in the United States after

removal, in violation of 8 U.S.C. § 1326. For the reasons that follow, we vacate

the sentence and remand for resentencing on an open record.

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable David M. Ebel, Senior Circuit Judge for the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
      1. California Health and Safety Code section 11351 is "divisible" within the

meaning of Descamps v. United States, 133 S. Ct. 2276 (2013). United States v.

De La Torre-Jimenez, No. 13-50438 (9th Cir. Nov. 7, 2014). Accordingly, the

modified categorical approach applies.

      2. The district court plainly erred by failing to conduct an independent

modified categorical approach, as described in United States v. Castillo-Marin, 684

F.3d 914 (9th Cir. 2012). What we wrote in that case applies equally here: "We

can understand the frustration of district judges who sentence a defendant on a

record to which no objection was made only to have to later revisit the matter

because the government failed to do its job. Relying solely on the factual

description in the PSR, however, was plain error." Id. at 921 (internal quotation

marks omitted).

      3. As in Castillo-Marin, 684 F.3d at 927, we remand on an open record. We

are not persuaded to depart from our "general rule" that we remand on an open

record. United States v. Espinoza-Morales, 621 F.3d 1141, 1152 (9th Cir. 2010).

      Sentence VACATED; case REMANDED for resentencing on an open

record.




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