United States v. Ernie Hernandez ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50098
Plaintiff-Appellant, D.C. No. 5:16-cr-00101-R
v.
MEMORANDUM*
ERNIE HERNANDEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
The government appeals Ernie Hernandez’s 72-month sentence, which was
imposed following his guilty-plea conviction for conspiracy to possess with intent
to distribute and to distribute methamphetamine after being convicted of a felony
drug offense, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); 846. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing.
The government argues, and Hernandez concedes, that the district court
erred in sentencing Hernandez to a prison term below the 20-year mandatory-
minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing that a defendant
who violates section 841(a) “after a prior conviction for a felony drug offense has
become final . . . shall be sentenced to a term of imprisonment which may not be
less than 20 years”). We agree. This statutory minimum is mandatory, see United
States v. Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011), and Hernandez is not eligible
for any of the exceptions to the mandatory minimum, see 18 U.S.C. § 3553(e), (f).
Accordingly, on remand, the district court must impose a sentence of at least 240
months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii); Sykes, 658 F.3d at
1146.
VACATED and REMANDED for resentencing.
2 17-50098