                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 30 2011
                     UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10575

               Plaintiff - Appellee,             D.C. No. 2:04-cr-00470-FCD
  v.
                                                 MEMORANDUM *
SALVADOR GARCIA-REAL, a.k.a.
Antonio Garcia, a.k.a. Salvador Real-
Garcia,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Salvador Garcia-Real appeals from the 24-month sentence imposed

following revocation of supervised release. We have jurisdiction under

28 U.S.C. § 1291, and we vacate and remand.

       Garcia-Real contends that the court failed to explain sufficiently why it

elected to impose a sentence of imprisonment in his supervised release case. This



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argument is meritless. The record makes clear that the court explained its decision,

which was consistent with U.S.S.G. § 7B1.3(a)(1) and (f).

      Garcia-Real also contends that the court failed to address his arguments

regarding breach of trust and cultural assimilation. The court entertained and

responded adequately to his arguments. See United States v. Perez-Perez, 512 F.3d

514, 516 (9th Cir. 2008).

      Garcia-Real also argues that the district court relied on an inaccurate

characterization of his criminal history in selecting a sentence. This contention has

merit. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)

(selection of sentence based on clearly erroneous facts constitutes procedural

error). The record reflects that the district court selected the sentence based in part

on its understanding that Garcia-Real repeatedly engages in dangerous criminal

conduct following his illegal reentries, an understanding that is refuted by the

record. (See PSR ¶¶ 20-34, 43, 65.) Because Garcia-Real’s substantial rights were

affected by the error and because the error seriously affects the fairness of the

proceedings, we exercise our discretion to remand. See United States v. Olano,

507 U.S. 725, 734-36 (1993). Our resolution of this issue renders it unnecessary to

reach Garcia-Real’s arguments regarding staleness and due process.

      VACATED and REMANDED.




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