USA v. Jorge Aguila, No. 10-50209 (9th Cir. 2010)

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FILED AUG 24 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-50209 D.C. No. 3:05-cr-01919-DMS v. JORGE ANTONIO AGUILA, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted August 23, 2010 ** Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges. Jorge Antonio Aguila appeals from the sentence imposed following revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. Aguila contends the district court abused its discretion by sentencing him * 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). based on an offense of unlawful sexual intercourse with a minor that never occurred. We vacate and remand for resentencing because it is not clear from the record whether the district court considered the non-existent offense in imposing its sentence at the revocation hearing. See, e.g., United States v. RodriguezMartinez, 25 F.3d 797, 800 n.3 (9th Cir. 1994) (remanding on another ground, but stating that the record is unclear as to whether the sentencing court considered a 1974 narcotics conviction to be evidence of Rodriguez s recidivist nature ). We do not reach Aguila s remaining contention. SENTENCE VACATED AND REMANDED. 2 10-50209

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