                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 22, 2008
                                                  THOMAS K. KAHN
                            No. 07-13135
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                 D. C. Docket No. 06-00066-CR-1-RLV-4

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

JULIO MAGANA,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (May 22, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
      Julio Magana appeals the total sentence he received following his pleas of

guilty to carjacking with the intent to cause death or serious bodily harm, in

violation of 18 U.S.C. §§ 2119, 2 (“Counts One and Three”), and using a firearm

during the course of a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (“Count

Two”).

      On appeal, Julio Magana argues that the court erred when it departed upward

or otherwise imposed an unreasonable sentence of 120 months’ imprisonment on

Count Two, and that the record is insufficient for us to conduct meaningful

appellate review of that sentence. Although Julio Magana agreed, when pleading

guilty, to waive the right to appeal his sentence under certain circumstances, the

government has indicated that it does not seek to enforce this provision as to Count

Two, so we will consider Julio Magana’s claim, in turn.

                                           I.

      Pursuant to the Guidelines, a district court is required at the time of

sentencing to state, in open court, the reasons for its imposition of the particular

sentence and “the specific reason for the imposition of a sentence different from

that described,” if any. See 18 U.S.C. § 3553(a)(c)(2).

      We have previously vacated a defendant’s sentence and remanded for

resentencing where the district court’s lack of findings, either explicit or implicit,



                                            2
precluded meaningful appellate review. See United States v. Reid, 139 F.3d 1367,

1368 (11th Cir. 1998) (safety-valve relief). We have also done this where we were

unable to tell from the record whether the district court imposed an upward

departure or variance, and “the record was insufficient to permit the affirmance of

the sentence” under either scenario. See United States v. Valdes, 500 F.3d 1291,

1292 & n.2 (11th Cir. 2007).

       Recently, in Gall v. United States, 552 U.S. __, 128 S.Ct. 586 (2007), the

Supreme Court noted that a district court, in imposing sentence, “must adequately

explain the chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.” Gall, 552 U.S. at __, 128 S.Ct. at 597

(citing Rita v. United States, 551 U.S. __, 127 S.Ct. 2456 (2007)).

       Upon review of the record, and upon consideration of the briefs of the

parties, we vacate Managa’s sentence on Count Two and remand for resentencing.1

       On this record, we are precluded from conducting meaningful appellate

review of the sentence imposed on Count Two. First, it is unclear from the record

whether the district court even intended to deviate upward from Julio Magana’s

sentencing range on that count. Pursuant to U.S.S.G. § 2K2.4(b), the guideline

sentence for the count was the statutory mandatory minimum of 84-months’


       1
         We do not review the court’s sentences on Counts One and Three because no challenge
was raised to them on appeal and because of the appeal waiver.

                                             3
imprisonment. However, the district judge, in imposing the 120-month sentence

on the count, asserted that “sentence[s] within the guideline range [are] sufficient

to punish the defendant, protect the public, and [are] a deterrent to crime. And as

the Supreme Court ruled this morning, [they are] sentence[s] within the guidelines;

therefore, presumptively reasonable.” Thus, the sentence imposed on Count Two

appears to be inconsistent with the district court’s expressed intentions as to

sentencing.

      The government attorney attempted to resolve the lack of clarity between the

sentence imposed on Count Two and the court’s subsequent statements by asking

the court whether it was “departing upward . . . [ under the 18 U.S.C. §] 3553[a]

factor[s],” but the district court further added to the uncertainty surrounding its

actions when it merely stated “Yes” without any additional comment or

explanation.

      Second, to the extent that the district court intended to deviate upward, it is

unclear whether the deviation was intended to be an upward variance or departure.

Finally, the district court did not provide any findings – either explicit or implicit

– to justify the upward deviation.

      Thus, because we cannot conduct meaningful appellate review, we vacate

Julio Magana’s sentence on Count Two and remand for further proceedings with



                                            4
instructions to identify whether the difference between the applicable sentencing

range and the sentence imposed resulted from an upward departure or a variance,

and to explain the reasoning behind that decision, consistent with Guidelines and

18 U.S.C. § 3553(a)(c)(2).

VACATED AND REMANDED.




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