USA V. JUAN HERNANDEZ-HERNANDEZ, No. 11-50192 (9th Cir. 2012)

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FILED DEC 31 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-50192 D.C. No. 3:10-cr-02027-MMA v. MEMORANDUM * JUAN CARLOS HERNANDEZHERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Submitted December 19, 2012 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. Juan Carlos Hernandez-Hernandez appeals from the district court s judgment and challenges the 51-month sentence imposed following his guilty-plea conviction for three counts of bringing in illegal aliens for financial gain and aiding * 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). and abetting, in violation of 8 U.S.C. §§ 2 and 1324(a)(2)(B)(ii); and three counts of bringing in illegal aliens without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. Hernandez-Hernandez contends that the district court procedurally erred by failing to consider the 18 U.S.C. § 3553(a) sentencing factors when imposing sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e). This contention is foreclosed by United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009). Hernandez-Hernandez also contends that he was denied his right of allocution under Fed. R. Crim. P. 32(i)(4)(A)(ii). We agree with the parties that the district court failed to afford Hernandez-Hernandez the right to allocute at sentencing, and that the error was not harmless because the court could have imposed a shorter sentence by departing further under U.S.S.G. § 5K1.1. See United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005). Accordingly, we vacate the sentence and remand for resentencing so that the district court may afford Hernandez-Hernandez the opportunity to allocute. VACATED and REMANDED. 2 11-50192