USA V. PEDRO GARCIA-BANOS, No. 16-10480 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION OCT 27 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, U.S. COURT OF APPEALS Nos. 16-10480 16-10481 Plaintiff-Appellee, D.C. Nos. 2:16-cr-00172-DJH 4:12-cr-02509-DJH v. PEDRO GARCIA-BANOS, a.k.a. PEDRO BANOS-GARCIA, MEMORANDUM * Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. In these consolidated appeals, Pedro Garcia-Banos appeals the 70-month sentence imposed following his guilty plea to reentry of a removed alien, in violation of 8 U.S.C. § 1326, and consecutive 21-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and we vacate and remand for resentencing. Garcia-Banos contends that the district court failed to appreciate its discretion to impose a partially concurrent sentence. At sentencing, Garcia-Banos requested that the court run his sentences partially concurrently. The government responded that it doubted the lawfulness of a partially concurrent sentence. The court did not resolve the dispute so we cannot determine whether the district court understood its discretion to impose a partially concurrent sentence. See U.S.S.G. § 5G1.3(d) & cmt. n.4(C) (district court may impose sentence on a new offense to run consecutively, concurrently, or partially concurrently to undischarged term of imprisonment resulting from revocation of supervised release). Under these circumstances, we vacate Garcia-Banos’s sentence and remand for resentencing. See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011). VACATED and REMANDED for resentencing. 2 16-10480 & 16-10481
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