United States v. Juan Olibas-Valenzuela , 404 F. App'x 213 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 22 2010
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. 10-50175
Plaintiff - Appellee, D.C. No. 3:09-cr-02938-GT
v.
MEMORANDUM *
JUAN OLIBAS-VALENZUELA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, District Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Juan Olibas-Valenzuela appeals from the 12-month sentence imposed upon
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
and we vacate and remand for resentencing.
*
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).
Olibas-Valenzuela contends that the supervised release revocation
procedures set forth in 18 U.S.C. § 3583(e)(3) violate Apprendi v. New Jersey, 530
U.S. 466 (2000) and United States v. Booker, 543 U.S. 220 (2005). As Olibas-
Valenzuela concedes, this contention is foreclosed by United States v. Santana,
526 F.3d 1257, 1262 (9th Cir. 2008), and United States v. Huerta-Pimental, 445
F.3d 1220, 1225 (9th Cir. 2006).
Olibas-Valenzuela further argues that the district court procedurally erred by
failing to calculate and consider the applicable advisory Guidelines range. The
record reveals that the district court committed a significant procedural error
because it did not calculate the advisory Guidelines range, and neither the parties
nor the probation office identified the applicable range. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Denton, 611 F.3d 646, 651 (9th Cir.
2010). The Government has not met its burden of showing that the error was
harmless; therefore, we vacate the sentence and remand for resentencing. United
States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (stating that this court “will
remand non-harmless procedural errors”).
2 10-50175
Because the district court’s failure to calculate the advisory Guidelines range
requires remand for resentencing, it is unnecessary to address Olibas-Valenzuela’s
remaining claims of procedural error at sentencing.
VACATED and REMANDED for resentencing.
3 10-50175