Martinez-Vargas

MEMORANDUM *

Abraham Martinez-Vargas appeals the district court’s sentence. Martinez-Vargas pleaded guilty to illegally re-entering the United States after deportation, a violation of 8 U.S.C. §§ 1326 (a) and (b)(2). At the time of sentencing on the federal charge, Martinez-Vargas was serving a state sentence for violating his state probation on an unrelated charge by illegally re-entering the United States. The district court, relying on United States Sentencing Guidelines § 5G1.3(a), held that it was mandated to impose Martinez-Vargas’s federal sentence consecutively to his state sentence.

We review de novo the district court’s interpretation of the Guidelines. United States v. Hughes, 282 F.3d 1228, 1230 (9th Cir.2002). The district court’s application of the Guidelines to the facts of a case is reviewed for abuse of discretion. United States v. Antonakeas, 255 F.3d 714, 727 (9th Cir.2001).

The district court erred when it held that § 5G1.3(a) applies to Martinez-Vargas. Section 5G1.3(a) applies only “If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status).” Martinez-Vargas illegally…