United States v. Jesus Aguilar-Garcia

MEMORANDUM

Defendant-Appellant Jesus Aguilar-Garcia (“Aguilar-Garcia”) appeals the dis-. trict court’s rejection of his Federal Rule of Criminal Procedure 11(c)(1)(C) sentence bargain. He also appeals his 60-month sentence for illegal reentry in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 8742 . We affirm the conviction, but vacate the sentence and remand for resen-tencing on an open record.

1. The district court provided specific reasons, rooted in the circumstances of this case, for rejecting the sentence bargain. It therefore did not abuse its discretion. See In re Morgan, 506 F.3d 705, 711-12 (9th Cir.2007). Moreover, Aguilar-Garcia fails to show that any error under Federal Rule of Criminal Procedure 11(c)(5)(C) or 32(i)(4)(A)(iii) affected his substantial rights. See United States v. Borowy, 595 F.3d 1045, 1049-50 (9th Cir.2010); United States v. Waknine, 543 F.3d 546, 552 (9th Cir.2008).

2. In imposing the 60-month sentence, the district court correctly found that California Health & Safety Code § 11378 is divisible within the meaning of Descamps v. United States, - U.S. -, 133 S.Ct. 2276 , 186 L.Ed.2d 438 (2013), and…