United States v. Jose Reina-Valenzuela

FILED
NOT FOR PUBLICATION AUG 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10528
Plaintiff - Appellee, D.C. No. 4:09-cr-01594-DCB-
BPV-1
v.
JOSE JAVIER REINA-VALENZUELA, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted August 16, 2013**
San Francisco, California
Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.
Jose Reina-Valenzuela appeals the sentence imposed following his guilty plea
to possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
*
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).
§§ 841(a)(1) and (b)(1)(A)(viii), and importation of methamphetamine, in violation
of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(H). We have jurisdiction under 28
U.S.C. § 1291.
Because the district court was apparently under the mistaken impression that
Reina had transported 9.88 kilograms of methamphetamine rather than 5.807
kilograms, and because the district court relied upon the quantity of methamphetamine
transported in imposing the sentence, we find procedural error. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008). Accordingly, we vacate Reina’s sentence and remand for resentencing. When
reconsidering the request for a minor role reduction, the district court should take into
account the error regarding the quantity of drugs.1 In light of this disposition, we do
not reach the other issues raised by Reina about his sentence.
VACATED AND REMANDED.
1
Because the district court found Reina eligible for the “safety valve” under
18 U.S.C. § 3553(f), it is not constrained by the mandatory minimum sentence on
remand.
2