Garcia
United States v. Garcia
Opinion
Lead Opinion
MEMORANDUM **
Eleazar Garcia appeals the 365-month sentence imposed following his guilty plea conviction for conspiracy, and drug and weapons violations under 21 U.S.C. §§ 841 , 846 and 18 U.S.C. § 922 (o). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.
Garcia contends the district court erred in denying him a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We review the factual basis for the district court’s decision regarding acceptance of responsibility for clear error, United States v. Velasco-Medina, 305 F.3d 839, 852-53 (9th Cir.2002), and on review of the record find no error, see id. at 854 .
Garcia also contends the district court’s statement of reasons for imposing a 365-month sentence was inadequate. The district court’s imposition of a sentence significantly more severe than Garcia’s prior vacated sentences created a presumption of vindictiveness. See United States v. Rapal, 146 F.3d 661, 663-64 (9th Cir.1998). The district court made no affirmative statement indicating changed facts occurring after its first two attempts at impos *693 ing sentence which would justify the increase. Id.