United States v. Gino Rodriquez

FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30223
Plaintiff - Appellant, D.C. No. 2:03-cr-00142-RHW-1
v.
MEMORANDUM*
GINO GONZAGA RODRIQUEZ,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted April 5, 2010
Seattle, Washington
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
The Government appeals the district court’s sentencing for Gino
Rodriquez’s conviction under 18 U.S.C. § 922(g)(1), felon in possession of a
firearm, wherein the court found that Rodriquez’s criminal history did not subject
him to a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 924 (“ACCA”). The Government argues that the court committed reversible
error when it failed to consider Rodriquez’s 1986 California conviction in
determining whether Rodriquez had been previously convicted of three drug-
related crimes punishable by ten or more years imprisonment. See 18 U.S.C. §
924.
The Government concedes that it failed to raise the California conviction at
sentencing and raises it now, for the first time, on appeal. Such a failure should
normally result in waiver. However, because the issue before us is purely a
question of law, we may exercise our discretion and rule on the matter. Jovanovich
v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987); see also United States v.
DeSalvo, 41 F.3d 505, 510–11 (9th Cir. 1994). Exercising our discretion, we
vacate the imposed sentence but decline to rule on the matter. Instead, we remand
this case for resentencing before the district court, which should have had an
opportunity to rule on this matter.
At sentencing, the district court must determine whether Rodriquez was
convicted of a drug-related offense prior to his earliest Washington drug
conviction. If so, Rodriquez’s initial Washington conviction would be punishable
by a ten-year term of imprisonment. See Wash. Rev. Code §§ 9A.20.021(c);
69.50.401; 69.50.408. As a result, Rodriquez would have three previous
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convictions for serious drug offenses and must be sentenced to serve a mandatory
minimum sentence of 15 years. See 18 U.S.C. § 924(e).
VACATED and REMANDED.
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