United States v. Pedro Garcia-Banos

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-10480
16-10481
Plaintiff-Appellee,
D.C. Nos. 2:16-cr-00172-DJH
v. 4:12-cr-02509-DJH
PEDRO GARCIA-BANOS, a.k.a. MEMORANDUM *
PEDRO BANOS-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
In these consolidated appeals, Pedro Garcia-Banos appeals the 70-month
sentence imposed following his guilty plea to reentry of a removed alien, in
violation of 8 U.S.C. § 1326, and consecutive 21-month sentence imposed upon
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
*
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).
and we vacate and remand for resentencing.
Garcia-Banos contends that the district court failed to appreciate its
discretion to impose a partially concurrent sentence. At sentencing, Garcia-Banos
requested that the court run his sentences partially concurrently. The government
responded that it doubted the lawfulness of a partially concurrent sentence. The
court did not resolve the dispute so we cannot determine whether the district court
understood its discretion to impose a partially concurrent sentence. See U.S.S.G.
§ 5G1.3(d) & cmt. n.4(C) (district court may impose sentence on a new offense to
run consecutively, concurrently, or partially concurrently to undischarged term of
imprisonment resulting from revocation of supervised release). Under these
circumstances, we vacate Garcia-Banos’s sentence and remand for resentencing.
See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011).
VACATED and REMANDED for resentencing.
2 16-10480 & 16-10481