United States v. Augusto Recinos , 558 F. App'x 759 ( 2014 )

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NOT FOR PUBLICATION FEB 27 2014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
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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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