                                                                              FILED
                           NOT FOR PUBLICATION                                APR 19 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30223

              Plaintiff - Appellant,             D.C. No. 2:03-cr-00142-RHW-1

  v.
                                                 MEMORANDUM*
GINO GONZAGA RODRIQUEZ,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                        Argued and Submitted April 5, 2010
                               Seattle, Washington

Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

       The Government appeals the district court’s sentencing for Gino

Rodriquez’s conviction under 18 U.S.C. § 922(g)(1), felon in possession of a

firearm, wherein the court found that Rodriquez’s criminal history did not subject

him to a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 924 (“ACCA”). The Government argues that the court committed reversible

error when it failed to consider Rodriquez’s 1986 California conviction in

determining whether Rodriquez had been previously convicted of three drug-

related crimes punishable by ten or more years imprisonment. See 18 U.S.C. §

924.

       The Government concedes that it failed to raise the California conviction at

sentencing and raises it now, for the first time, on appeal. Such a failure should

normally result in waiver. However, because the issue before us is purely a

question of law, we may exercise our discretion and rule on the matter. Jovanovich

v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987); see also United States v.

DeSalvo, 41 F.3d 505, 510–11 (9th Cir. 1994). Exercising our discretion, we

vacate the imposed sentence but decline to rule on the matter. Instead, we remand

this case for resentencing before the district court, which should have had an

opportunity to rule on this matter.

       At sentencing, the district court must determine whether Rodriquez was

convicted of a drug-related offense prior to his earliest Washington drug

conviction. If so, Rodriquez’s initial Washington conviction would be punishable

by a ten-year term of imprisonment. See Wash. Rev. Code §§ 9A.20.021(c);

69.50.401; 69.50.408. As a result, Rodriquez would have three previous


                                          2
convictions for serious drug offenses and must be sentenced to serve a mandatory

minimum sentence of 15 years. See 18 U.S.C. § 924(e).

      VACATED and REMANDED.




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