USA V. JUAN MORAN, No. 13-50142 (9th Cir. 2013)

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FILED DEC 06 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-50142 D.C. No. 3:12-cr-04444-GT v. MEMORANDUM* JUAN MORALES MORAN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Gordon Thompson, Jr., District Judge, Presiding Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Juan Morales Moran appeals from the district court s judgment and challenges the nine-month custodial sentence and three-year term of supervised release imposed following his guilty-plea conviction for fraud and misuse of visas, * 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). permits and other entry documents, in violation of 18 U.S.C. § 1546. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. Morales Moran contends, and the government concedes, that the district court erred when it imposed a two-level increase under U.S.S.G. § 2L2.2(b)(1) for having a prior deportation. We agree that the district court erred when it imposed the enhancement in this case. Accordingly, Morales Moran is entitled to resentencing without the two-level enhancement. In light of our decision, we do not reach Morales Moran s remaining challenges to his sentence. The government represents that Morales Moran has been deported. We remand to the district court for proceedings consistent with this disposition and a determination whether Morales Moran is available for resentencing or would waive his right to be present for resentencing. See United States v. Aguilar-Reyes, 723 F.3d 1014, 1018 (9th Cir. 2013). VACATED and REMANDED. 2 13-50142

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