                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 27 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-10466

                 Plaintiff-Appellee,             D.C. No.
                                                 3:11-cr-00131-LRH-VPC-2
   v.

 ENRIQUE BUENROSTRO,                             MEMORANDUM*

                 Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                    Argued and Submitted September 15, 2016
                            San Francisco, California

Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.


   Defendant Enrique Buenrostro appeals the district court’s orders denying the

parties’ joint stipulation for a sentence reduction and his motion to reconsider. We

have jurisdiction under 28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      After a guilty plea to a single count of heroin distribution near a school and

aiding and abetting, Buenrostro received a sentence of 78 months of imprisonment.

He later moved for a sentence reduction following a retroactive change to the U.S.

Sentencing Guidelines. The parties agree that Buenrostro is statutorily eligible for

a sentence reduction under Amendment 782, and they agree on his new guideline

range under the Amendment. The district court declined to reduce Buenrostro’s

sentence under the revised guideline range, ruling that the original 78-month

sentence was reasonable on the basis of several factors. Because our precedent

required the district court to provide some explanation for rejecting a defendant’s

non-frivolous arguments about post-sentencing rehabilitation, we vacate and

remand for resentencing.

      “A district court is required to ‘consider’ the § 3553(a) factors both in the

initial imposition of a sentence and in any subsequent reduction of a sentence after

the modification of a guidelines range by the Sentencing Commission.” United

States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (citing 18 U.S.C. § 3582(a);

18 U.S.C. § 3582(c)(2)). “[P]ost-sentencing or post-offense rehabilitation—

particularly in light of its tendency to reveal a defendant’s likelihood of future

criminal conduct—[is] a critical factor to consider in the imposition of a sentence.”

Id. at 1010. “[W]hile a district judge need not enumerate every factor supporting a

particular sentence, ‘[a] statement of reasons is important. The sentencing judge


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should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.’” Id. (quoting Rita v. United States, 551 U.S. 338, 356

(2007)). “[A] mere statement that the judge had read the papers” is not, “by itself

and automatically, sufficient as an explanation of the judge’s treatment of the

§ 3553(a) factors.” Id.

      Here, the district court’s order denying reconsideration said nothing about

Buenrostro’s post-sentencing conduct.1 Instead, it focused exclusively on his prior

criminal history. The government argues that the district court did consider

Buenrostro’s arguments but found them to be outweighed by the negative factors

set forth in its orders. In support, the government points to the district court’s

introductory statement—“Before the Court is Defendant Enrique Buenrostro’s [ ]

Motion for Reconsideration of the Court’s Order Denying the Joint Stipulation for

a Reduction of Sentence.” But under Trujillo, this is not enough. See id. (holding

that a statement that the judge had read the papers is not, “by itself and


1
  An abbreviated summary of Buenrostro’s post-sentencing history was before the
court at the time of its original ruling. Because the parties had stipulated to a
sentence reduction, Buenrostro did not originally present any evidence of his
rehabilitation to the district court. Consequently, the district court’s first order
could not have considered most of his post-sentencing conduct. In its order
denying reconsideration, the district court did not fault Buenrostro for failing to
submit more supporting materials with the parties’ stipulation, nor did the court
otherwise suggest that any issue had thereby been waived.


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automatically, sufficient as an explanation of the judge’s treatment of the § 3553(a)

factors”).

      Because this procedural error requires us to vacate and remand for

resentencing, we do not reach Buenrostro’s other arguments.

      For the foregoing reasons we VACATE and REMAND FOR

RESENTENCING.




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