                                                                          FILED
                             NOT FOR PUBLICATION                           DEC 26 2014

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-50302

               Plaintiff - Appellee,             D.C. No. 2:13-cr-00082-SVW-1

  v.
                                                 MEMORANDUM*
JESUS AGUILAR-GARCIA,

               Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Central District of California
                     Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted November 20, 2014
                                Pasadena, California

         Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY, District
       **
Judge.




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

         **  The Honorable Jack Zouhary, United States District Judge, Northern
District of Ohio, sitting by designation.
       Defendant-Appellant Jesus Aguilar-Garcia (“Aguilar-Garcia”) appeals the

district court’s rejection of his Federal Rule of Criminal Procedure 11(c)(1)(C)

sentence bargain. He also appeals his 60-month sentence for illegal reentry in violation

of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742. We affirm the conviction, but vacate the sentence and remand for resentencing

on an open record.

       1.     The district court provided specific reasons, rooted in the circumstances

of this case, for rejecting the sentence bargain. It therefore did not abuse its discretion.

See In re Morgan, 506 F.3d 705, 711–12 (9th Cir. 2007). Moreover, Aguilar-Garcia

fails to show that any error under Federal Rule of Criminal Procedure 11(c)(5)(C) or

32(i)(4)(A)(iii) affected his substantial rights. See United States v. Borowy, 595 F.3d

1045, 1049–50 (9th Cir. 2010); United States v. Waknine, 543 F.3d 546, 552 (9th Cir.

2008).

       2.     In imposing the 60-month sentence, the district court correctly found that

California Health & Safety Code § 11378 is divisible within the meaning of Descamps

v. United States, 133 S. Ct. 2276 (2013), and therefore subject to the modified

categorical approach. See Padilla-Martinez v. Holder, 770 F.3d 825, 831 n.3 (9th Cir.

2014) (concluding Cal. Health & Safety Code § 11378 is divisible); see also Coronado




                                             2
v. Holder, 759 F.3d 977, 984–85 (9th Cir. 2014) (holding similarly-structured statute

Cal. Health & Safety Code § 11377(a) is divisible).

      4.     However, in conducting the modified categorical approach, the district

court plainly erred by relying solely on the presentence report’s (“PSR”) description

of Aguilar-Garcia’s conviction under California Health & Safety Code § 11378.1 See

United States v. Castillo-Marin, 684 F.3d 914, 920–22 (9th Cir. 2012). As in Castillo-

Marin, 684 F.3d at 927, we remand on an open record, so as to provide the

Government with the opportunity to submit acceptable evidence of the factual basis of

Aguilar-Garcia’s conviction. Our remand also allows the district court an opportunity

to provide a fuller explanation of its decision to sentence Aguilar-Garcia to an

above-Guidelines term that was double the sentence recommended by the Government.

See Rita v. United States, 551 U.S. 338, 356 (2007) (“[A] statement of reasons [in

support of a sentence] is important. The sentencing judge should set forth enough to

satisfy the appellate court that [the judge] has considered the parties’ arguments and


      1
              United States v. Gonzalez-Aparicio, 663 F.3d 419, 433 (9th Cir. 2011)
is inapposite because there, the PSR identified specific, judicially noticeable court
documents on which it relied, and “evidently quoted from state court documentation.”
Here, the PSR refers broadly to “court documents” and, more specifically, the state
court complaint and an arrest report, neither of which may be used under the modified
categorical approach. See id. at 432–33. Nor does Perez-Mejia v. Holder, 663 F.3d
403, 409–17 (9th Cir. 2011), decided in the context of an immigration proceeding,
require a different result.

                                          3
has a reasoned basis for exercising [the judge’s] own legal decisionmaking

authority.”); see also United States v. Trujillo, 713 F.3d 1003, 1010–11 (9th Cir. 2013)

(vacating above-Guidelines sentence where court merely stated it considered all the

sentencing factors, because Rita “is concerned with explanation, not merely

consideration” (emphasis in original)).

      AFFIRMED in part, VACATED in part, and REMANDED.




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