                                                                             FILED
                            NOT FOR PUBLICATION                              FEB 27 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-50588

               Plaintiff - Appellee,              D.C. No. 8:11-cr-00069-R

  v.
                                                  MEMORANDUM*
AUGUSTO ASENCIO RECINOS, a.k.a.
Augusto Recinos Asencio,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                           Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Augusto Asencio Recinos appeals from the district court’s judgment and

challenges his jury-trial conviction and 120-month sentence for possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii).


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and

remand in part.

      Asencio Recinos first contends that there was insufficient evidence to

support his conviction because the government failed to present direct evidence

that he had knowledge of the cocaine in his vehicle. We review de novo. See

United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003). The

government presented evidence that Asencio Recinos was the driver and sole

occupant of a vehicle containing 67 kilograms of cocaine, and that he told an

officer that he knew he had accepted work involving the transportation of

narcotics. Viewing this evidence in the light most favorable to the government, a

rational trier of fact could have found beyond a reasonable doubt that Asencio

Recinos had knowledge of the cocaine in his vehicle. See id.; United States v.

Carranza, 289 F.3d 634, 644 (9th Cir. 2002).

      Asencio Recinos next contends, and the government concedes, that the

district court procedurally erred by declining to apply the safety valve provision of

18 U.S.C. § 3553(f) without explanation. The record reflects that at the time of

sentencing, the parties agreed that Asencio Recinos had satisfied the safety valve

requirements. Nevertheless, the court sentenced him to 120 months, the statutory

minimum, without providing reasons for refusing to apply the safety valve


                                          2                                     12-50588
adjustment. Therefore, we vacate and remand for resentencing. Upon remand, the

district court shall either state its reasons for declining to apply the safety valve

provision by reference to the section 3553(f) factors, or grant safety valve relief

and sentence Asencio Recinos “without regard to” the 120-month mandatory

minimum. See 18 U.S.C. § 3553(f); United States v. Mejia-Pimental, 477 F.3d

1100, 1109 (9th Cir. 2007).

      In light of this disposition, we do not reach Asencio Recinos’s contention

that his sentence is substantively unreasonable.

      AFFIRMED in part; VACATED and REMANDED for resentencing.




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