                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 24 2010

                                                                        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. 10-50209

               Plaintiff - Appellee,             D.C. No. 3:05-cr-01919-DMS

  v.

JORGE ANTONIO AGUILA,                            MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Jorge Antonio Aguila appeals from the sentence imposed following

revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,

and we vacate and remand.

       Aguila contends the district court abused its discretion by sentencing him

          *
             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).
based on an offense of unlawful sexual intercourse with a minor that never

occurred. We vacate and remand for resentencing because it is not clear from the

record whether the district court considered the non-existent offense in imposing

its sentence at the revocation hearing. See, e.g., United States v. Rodriguez-

Martinez, 25 F.3d 797, 800 n.3 (9th Cir. 1994) (remanding on another ground, but

stating that “the record is unclear as to whether the sentencing court considered a

1974 narcotics conviction to be evidence of Rodriguez’s recidivist nature”).

      We do not reach Aguila’s remaining contention.

      SENTENCE VACATED AND REMANDED.




                                          2                                      10-50209
