                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 31 2012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. 11-50192

               Plaintiff - Appellee,              D.C. No. 3:10-cr-02027-MMA

  v.
                                                  MEMORANDUM *
JUAN CARLOS HERNANDEZ-
HERNANDEZ,

               Defendant - Appellant.



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

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Juan Carlos Hernandez-Hernandez appeals from the district court’s

judgment and challenges the 51-month sentence imposed following his guilty-plea

conviction for three counts of bringing in illegal aliens for financial gain and aiding


          *
             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).
and abetting, in violation of 8 U.S.C. §§ 2 and 1324(a)(2)(B)(ii); and three counts

of bringing in illegal aliens without presentation, in violation of 8 U.S.C.

§ 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291, and we vacate

and remand.

         Hernandez-Hernandez contends that the district court procedurally erred by

failing to consider the 18 U.S.C. § 3553(a) sentencing factors when imposing

sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e). This

contention is foreclosed by United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir.

2009).

         Hernandez-Hernandez also contends that he was denied his right of

allocution under Fed. R. Crim. P. 32(i)(4)(A)(ii). We agree with the parties that

the district court failed to afford Hernandez-Hernandez the right to allocute at

sentencing, and that the error was not harmless because the court could have

imposed a shorter sentence by departing further under U.S.S.G. § 5K1.1. See

United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005). Accordingly, we

vacate the sentence and remand for resentencing so that the district court may

afford Hernandez-Hernandez the opportunity to allocute.

         VACATED and REMANDED.




                                           2                                   11-50192
