UNITED STATES of America, Plaintiff-Appellee, v. Francisco REAL-HERNANDEZ, Defendant-Appellant

Real-Hernandez appeals from his sentence, due to the mandatory minimum sentence of 60 months imposed by the district court after he pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 , and we vacate the sentence and remand for resentencing.

I

In the early morning hours of March 11, 1994, United States Customs Agents conducting surveillance at Silver Strand State Beach in Coronado, California, discovered 13 duffel bags containing approximately 971 pounds of marijuana. They also discovered two individuals in wet suits, later identified as Real-Hernandez and Javier Medma-Per-ez, hiding approximately 100 yards from where the agents found the duffel bags.

The agents took Real-Hernandez and Medina-Perez into custody and informed them of their rights announced by the Court in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Medina-Perez waived his rights and agreed to talk with the agents. He stated that he and Real-Hernandez unloaded the marijuana from small, Zodiac-type boats and intended to hide it at a predetermined location on…