                                                                        FILED
                      UNITED STATES COURT OF APPEALS                     JAN 29 2013

                                                                    MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                     U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                        No. 11-10375

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00565-CKJ
                                                 District of Arizona,
  v.                                             Tucson

MANUEL OSMAN NEVAREZ-
CAJIGAS,                                         ORDER

              Defendant - Appellant.



Before:      FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       The government’s unopposed motion to recall the mandate and amend the

decision to alter the remedy is granted.

       The mandate is recalled and the memorandum disposition filed on March 5,

2012, is withdrawn.

       A replacement memorandum disposition is being filed concurrently with

this order, and the mandate shall reissue forthwith.
                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 29 2013

                                                                        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. 11-10375

                Plaintiff - Appellee,            D.C. No. 4:11-cr-00565-CKJ

  v.
                                                 MEMORANDUM *
MANUEL OSMAN NEVAREZ-
CAJIGAS,

                Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                     Ronald S.W. Lew,** District Judge, Presiding

                            Submitted February 21, 2012 ***

Before:         FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Manuel Osman Nevarez-Cajigas appeals from the 13-month-and-one-day




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          ** The Honorable Ronald S.W. Lew, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sentence imposed following his guilty-plea conviction for possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm without prejudice to an

application by Nevarez-Cajigas to the district court to vacate his sentence and

resentence him consistent with this decision.

      Nevarez-Cajigas contends that the district court procedurally erred by failing

to calculate the applicable Sentencing Guidelines range at the outset of the

sentencing hearing, and by imposing a “standard” sentence rather than one based

upon the 18 U.S.C. § 3553(a) sentencing factors. We conclude that the district

court procedurally erred by failing to calculate the Guidelines range, and by failing

adequately to consider the § 3553(a) factors. See United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). Accordingly, Nevarez-Cajigas is entitled to be

resentenced. However, the district court cannot sentence Nevarez-Cajigas at this

time because he has been released and deported. We accordingly affirm the

sentence imposed by the district court, but do so without prejudice to an

application by Nevarez-Cajigas to the district court to vacate his sentence and

resentence him consistent with this decision at such time, if ever, that he is in this

country and available for resentencing. See United States v. Plancarte-Alvarez,

366 F.3d 1058, 1065 (9th Cir. 2004).


                                            2                                    11-10375
Nevarez-Cajigas’ motion to file an untimely reply brief is granted.

AFFIRMED.




                                   3                                  11-10375
