                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 10 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50544

               Plaintiff - Appellee,             D.C. No. 3:10-cr-02961-GT

  v.
                                                 MEMORANDUM *
ROBERTO GARCIA-GARCIA, a.k.a.
Enrique Garcia-Garcia,

               Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                  Gordon Thompson, Jr., District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Roberto Garcia-Garcia appeals from the 57-month sentence imposed

following his guilty-plea conviction to being a deported alien found in the United

States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291, and we vacate and remand for resentencing.

      The parties agree, and we concur, that the district court erred in imposing a

16-level increase in Garcia-Garcia’s base offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(i), because the documentation submitted by the government did

not provide clear and convincing evidence that Garcia-Garcia had a prior

drug-trafficking conviction. See United States v. Bonilla-Montenegro, 331 F.3d

1047, 1050 (9th Cir. 2003) (government must prove prior conviction by clear and

convincing evidence when it seeks a 16-level sentencing enhancement).

      Accordingly, we vacate the judgment and remand for resentencing. Given

the government’s representation that the documents in the record are the only

available documents concerning Garcia-Garcia’s prior offense, on remand the

district court is directed to calculate the advisory Sentencing Guidelines range by

applying an enhancement of no more than eight levels under U.S.S.G. § 2L1.2(b).

      Garcia-Garcia’s request for judicial notice is granted.

      The clerk shall issue the mandate forthwith.

      VACATED and REMANDED.




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