653 F.3d 1053 (9th Cir. 2011), 10-10216, United States v. Aguilar-Reyes

Docket Nº:10-10216.
Citation:653 F.3d 1053
Opinion Judge:LYNN, District Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Marcelino AGUILAR-REYES, Defendant-Appellee.
Attorney:Dominic Lanza, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellant. Brian I. Rademacher, Assistant Federal Public Defender, Tucson, AZ, for the defendant-appellee.
Judge Panel:Before: BARRY G. SILVERMAN and SUSAN P. GRABER, Circuit Judges, and BARBARA M.G. LYNN, District Judge.[*]
Case Date:August 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1053

653 F.3d 1053 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellant,

v.

Marcelino AGUILAR-REYES, Defendant-Appellee.

No. 10-10216.

United States Court of Appeals, Ninth Circuit

August 8, 2011

Argued and Submitted July 13, 2011.

Page 1054

Dominic Lanza, Assistant U.S. Attorney, Phoenix, AZ, for the plaintiff-appellant.

Brian I. Rademacher, Assistant Federal Public Defender, Tucson, AZ, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.Ct. No. 2:09-CR-01119-ROS.

Before: BARRY G. SILVERMAN and SUSAN P. GRABER, Circuit Judges, and BARBARA M.G. LYNN, District Judge.[*]

OPINION

LYNN, District Judge:

The government appeals the district court's resentencing of Defendant Aguilar-Reyes, arguing that the district court did not have jurisdiction to resentence more than fourteen days after sentencing, under Federal Rule of Criminal Procedure 35(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(1), and we vacate the amended judgment.

I. Background

On March 9, 2008, Arizona police arrested Aguilar-Reyes for illegally transporting aliens. He pled guilty to the Arizona state charge of " Attempt to Commit Smuggling," in violation of Arizona Revised Statutes section 13-2319. Aguilar-Reyes was sentenced to three years of probation and deported to Mexico.

On August 4, 2009, police found Aguilar-Reyes in Arizona, driving a vehicle containing five illegal aliens. A grand jury indicted Aguilar-Reyes on one count of reentry of removed alien, in violation of 8 U.S.C. § 1326(a), as enhanced by 8 U.S.C. § 1326(b)(1). Aguilar-Reyes pled guilty, without a plea agreement. The presentence report concluded that Aguilar-Reyes's 2008 state conviction was an " alien smuggling offense," which triggered a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii). Aguilar-Reyes objected to the presentence report, arguing that the state charge to which he pled guilty did not support the 16-level enhancement.

Page 1055

On March 1, 2010, the district court overruled Aguilar-Reyes's objection and sentenced him to imprisonment for thirty-three months, applying the 16-level enhancement. Aguilar-Reyes timely appealed that final judgment. This court stayed that separate appeal pending the result of this appeal.

On March 5, 2010, Aguilar-Reyes filed a motion under Federal Rule of Criminal...

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