Unpublished Disposition, 859 F.2d 154 (9th Cir. 1988)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Virgil Ronald BUFFALO, Defendant-Appellant.
No. 88-3136.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 13, 1988.* Decided Sept. 16, 1988.
Before EUGENE A. WRIGHT, WALLACE and HUG, Circuit Judges.
ORDER**
The order of September 1, 1988 is vacated and the case stands submitted.
Virgil Ronald Buffalo appeals the sentence imposed upon him following his guilty plea to abusive sexual contact with a female who had not attained the age of twelve years, in violation of 18 U.S.C. § 2244(a) (1). Buffalo contends that the district court incorrectly applied the 1987 Sentencing Guidelines and impermissibly enhanced his sentence by applying both Sentencing Guidelines Sec. 2A3.4. (b) (2) and Sec. 3A1.1.
Because the district court did not state its reasons for Buffalo's sentence at the time of sentencing, as required by 18 U.S.C. § 3553(c), we are unable to determine whether both Guidelines were applied in computing Buffalo's sentence. Therefore, sentence is vacated and the case is remanded for the purpose of resentencing consistent with the instructions contained in this order. See 18 U.S.C. § 3742(e).1
The mandate shall issue immediately.
The panel unanimously finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
On remand the district court must determine:
(a) Whether Guideline Sec. 2A3.4. (b) (2) is applicable to Buffalo's offense. The Guideline provides for an increase of 4 levels if the abusive sexual contact was accomplished as defined in 18 U.S.C. § 2242. Buffalo, however, was convicted under 18 U.S.C. § 2244(a) (1), and had the sexual contact been a sexual act, it would have been in violation of 18 U.S.C. § 2241(c).
(2) Whether Guideline Sec. 2A3.4. (b) (1) is applicable, because 18 U.S.C. § 2241(c) is implicated in Buffalo's guilty plea. See id. Commentary and Application Note 1.
(3) Whether Guideline Sec. 3A1.1 is applicable.
(4) Whether Guideline Sec. 3E1.1. (a) (b) or (c) is applicable.
(5) Whether, in light of Buffalo's timely objection to the inclusion of his juvenile adjudications in the sentencing determination, Buffalo's criminal history is pertinent to computing his sentence. See generally Chapter Four, Guideline Secs. 4A1.1. through 4A1.3.
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