United States v. Saturnino Pineda-Flores

MEMORANDUM

Saturnino Pineda-Flores appeals the district court’s sentence of thirty-six months imprisonment followed by thirty-six months of supervised release, under 8 U.S.C. § 1326 . Pineda-Flores argues that the district court committed plain error in applying a twelve-level enhancement under U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(l) for a prior “drug trafficking offense.” We vacate the sentence and remand for further proceedings consistent with this memorandum.

1. The government argues that the doctrines of waiver, invited error, and judicial admission bar this appeal. These arguments lack merit. At sentencing, Pineda-Flores failed to object to the enhancement and submitted a document that applied the enhancement in a similar fashion as the presentence report (“PSR”) had recommended. The record, however, fails to demonstrate what analytical route Pine-da-Flores’s counsel took to determine that the prior state conviction could trigger the enhancement. We cannot conclude that Pineda-Flores made a tactical decision not to object. See United States v. Jimenez, 258 F.3d 1120, 1123-24 (9th Cir.2001) (“A district court’s legal determinations are not immunized from…