United States v. Oscar Guadalupe Leyva-Franco

The United States appeals from a sentence imposed on appellee, Oscar Guadalu pe Leyva-Franco, for importing five kilograms or more of cocaine from Mexico. The sentence was a result of a downward departure of four levels based on “aberrant behavior.” U.S.S.G. § 5K2.20. The government objected to the departure, relying on evidence tending to show that the defendant had admitted to a customs inspector “crossing [the border] numerous times [with cocaine] in the week prior to his arrest.” Appellee Leyva-Franco denies making any such admission.

Following the imposition of sentence, the prosecutor asked the court to make a finding in connection with the departure as to whether Leyva-Franco had admitted prior importations. The court replied: “I’m not making a finding either way. I’m saying I considered it.” On appeal, the government argues that the district court violated Fed.R.Crim.P. 32(c)(1) and that this matter should be remanded for resentencing.

Rule 32(c)(1) provides:

Our circuit jurisprudence requires “strict compliance” with this rule. See, e.g., United States v. Houston, 217 F.3d 1204, 1207 (9th Cir.2000); United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th…