                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10147

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00389-RCJ-PAL-1
 v.

JUAN NAVARRO-GARCIA,                            MEMORANDUM*

                Defendant-Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                      Argued and Submitted January 15, 2019
                            San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District
Judge.

      Juan Navarro-Garcia pleaded guilty to the offense of being a “Deported

Alien Found Unlawfully in the United States” under 8 U.S.C. § 1326 on January

10, 2018. The parties recommended a sentence of time served. The district court


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
varied upward from the range under the United States Sentencing Guidelines (“the

Guidelines”) and imposed a sentence of 18 months. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate and remand.

      The district court determined that Navarro-Garcia had an offense level of 6

and a criminal history category of IV, giving rise to a Guidelines range of 6 to 12

months. At the time of his hearing on April 9, 2018, Navarro-Garcia had been in

federal custody for four and a half months, and in state custody for three and a half

years. The government recommended a sentence of time served, a downward

departure from the Guidelines, because of the time Navarro-Garcia had already

served in state custody. See U.S.S.G. § 2L1.2 cmt. n.6 (2016).1 The district court

held that it could not grant credit for the time served in state custody because it was

on a separate and unrelated conviction. Furthermore, relying on the finding that

“[t]he government [was] having difficulty, especially in the Ninth Circuit, of

deporting people with crime convictions who are eligible for deportation,” the

district court held that it could not take into consideration the fact that Navarro-

Garcia would be automatically deported following his release. Instead, the court

held that it “[had] to enter separate punishment,” and it imposed a sentence of 18

months.



      1
            These were the Guidelines in effect at the time of the sentencing
hearing on April 9, 2018.

                                           2                                     18-10147
      We have discretion to correct an error raised for the first time on appeal if

(1) it has not been intentionally relinquished or abandoned, (2) it is a plain or

obvious error, and (3) it has affected the defendant’s substantial rights. Molina-

Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (citing United States v.

Olano, 507 U.S. 725, 732-736 (1993)); see Fed. R. Crim. P. 52(b). Once these

three conditions have been met, we exercise discretion to correct the error if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quoting Olano, 507 U.S. at 736). The Supreme Court has held

that a failure to correct a plain Guidelines error that affects a defendant’s

substantial rights satisfies the fourth part of the analysis—that is to say, it will

seriously affect the fairness, integrity, and public reputation of judicial

proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018).

      The district court committed plain error. First, the court failed to recognize

that it had discretion to grant credit for the time served by Navarro-Garcia in state

custody. U.S.S.G. § 2L1.2 cmt. n.6 (2016). Second, the finding that Navarro-

Garcia was unlikely to be deported was erroneous, as the government conceded.

These errors are obvious, and Navarro-Garcia did not intentionally abandon them.

They have affected his substantial rights, as his sentence is 50 percent longer than

the upper end of the Guidelines range. U.S.S.G. ch. 5, pt. A (sentencing table). We

exercise our discretion to correct them.


                                            3                                     18-10147
      This is not the first time that the district court has relied on its erroneous

finding concerning the government’s deportation policies in sentencing

undocumented criminal defendants. See, e.g., Sentencing Transcript, United States

v. Chalma-Chalma, No. 3:14-cr-52- RCJ-WGC (D. Nev. Mar. 11, 2015); United

States v. Santibanes-Leon, 671 F. App’x 589 (9th Cir. 2016); United States v.

Hernandez-Guzman, 708 F. App’x 907, 909 n.1 (9th Cir. 2017). Reassignment is

therefore advisable in these unusual circumstances to preserve the appearance of

justice. United States v. Working, 287 F.3d 801, 809-10 (9th Cir. 2002) (citing

Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987)).

      SENTENCE VACATED AND REMANDED FOR RE-ASSIGNMENT

AND RE-SENTENCING.




                                           4                                     18-10147
