United States v. Jose Mosqueda

MEMORANDUM

Jose Castro Mosqueda appeals from the 37-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand.

The district court applied a 12-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on Mosqueda’s alleged 1994 drug trafficking conviction. Mosqueda disputed that he was convicted. In applying the enhancement, the district court appeared to rely on the presentence report and a state docket reflecting the 1994 conviction. The only evidence in the record on appeal of Mosqueda’s alleged conviction for possession of cocaine base for sale is the contested presentence report, which is insufficient to support the enhancement. See United States v. Snipe, 515 F.3d 947, 955 (9th Cir.2008) (when a defendant objects to a presentence report’s factual findings, the court may not simply rely on the factual statements in the PSR to find that the government has carried its burden).

Because the state docket is not part of the district court or appellate record, we are unable to…