                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 24 2009

                                                                        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. 09-50051

                Plaintiff - Appellee,            D.C. No. 3:08-CR-03122-GT-1

  v.
                                                 MEMORANDUM *
LUIS HERNANDEZ-SANCHES,

                Defendant - Appellant.



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

                        Argued and Submitted November 3, 2009
                                 Pasadena, California

Before: GOULD and BEA, Circuit Judges, and MOLLOY, ** District Judge.

       Luis Hernandez-Sanches appeals the forty-two-month sentence imposed

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

violation of 8 U.S.C. § 1326. The presentence report recommended a two-level


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **     The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
upward adjustment to Hernandez-Sanches’s criminal history score under U.S.

Sentencing Guidelines § 4A1.1(d) because Hernandez-Sanches was under a

criminal justice sentence at the time of the offense. Hernandez-Sanches objected to

the adjustment, arguing that he was not under a “violation warrant” within the

meaning of the relevant Guidelines application note. See U.S.S.G. § 4A1.1 cmt.

n.4 (“A defendant who commits the instant offense while a violation warrant from

a prior sentence is outstanding (e.g., a probation, parole, or supervised release

violation warrant) shall be deemed to be under a criminal justice sentence for the

purposes of this provision[.]”) (emphases added). The district court did not make

an explicit finding about whether Hernandez-Sanches was subject to a violation

warrant, as opposed to a warrant for a new crime, because it took the view that “a

warrant is a warrant” for federal sentencing purposes.

      Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court to

rule on “any disputed portion of the presentence report or other controverted

matter” that will affect sentencing. For each disputed fact, “the district court must

make an explicit factual finding that resolves the dispute.” United States v. Carter,

219 F.3d 863, 867 (9th Cir. 2000). “It is well settled in this circuit that when the

district court fails to make the required Rule 32 findings or determinations at the

time of sentencing, we must vacate the sentence and remand for resentencing.” Id.

at 866 (alteration and internal quotation marks omitted); see also United States v.
Houston, 217 F.3d 1204, 1207 (9th Cir. 2000) (“Our precedent requires strict

compliance with Rule 32.”) (internal quotation marks omitted). Because the

district court did not make an explicit finding about whether the Virginia warrant

was a violation warrant, a remand for resentencing is necessary.

      The sentence is VACATED and the case is REMANDED.
