USA V. ERNIE HERNANDEZ, No. 17-50098 (9th Cir. 2018)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 23 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 17-50098 D.C. No. 5:16-cr-00101-R v. MEMORANDUM* ERNIE HERNANDEZ, Defendant-Appellee. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. The government appeals Ernie Hernandez’s 72-month sentence, which was imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute and to distribute methamphetamine after being convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); 846. We have * 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). jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing. The government argues, and Hernandez concedes, that the district court erred in sentencing Hernandez to a prison term below the 20-year mandatoryminimum sentence. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing that a defendant who violates section 841(a) “after a prior conviction for a felony drug offense has become final . . . shall be sentenced to a term of imprisonment which may not be less than 20 years”). We agree. This statutory minimum is mandatory, see United States v. Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011), and Hernandez is not eligible for any of the exceptions to the mandatory minimum, see 18 U.S.C. § 3553(e), (f). Accordingly, on remand, the district court must impose a sentence of at least 240 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii); Sykes, 658 F.3d at 1146. VACATED and REMANDED for resentencing. 2 17-50098

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