Aguilar

MEMORANDUM **

Miguel Aguilar appeals his sentence of ninety-six months imprisonment following his guilty plea for possession with intent to distribute more than 100 grams of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841 (a)(1). We vacate Aguilar’s sentence and remand for resentencing.

Aguilar argues that the district court erred by failing to consult the United States Sentencing Guidelines, or the factors requiring consideration in 18 U.S.C. § 3553 (a); United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 765-66 , 160 L.Ed.2d 621 (2005); and by failing to provide the reasons for its sentencing decision. We agree.

The government first argues that we do not have jurisdiction because Aguilar waived his right to appeal his sentence in his plea agreement. His plea agreement waiver, however, was conditioned upon the Court imposing a sentence by applying the Guidelines “and impos[ing] a sentence within the range corresponding to the determined total offense level and criminal history category.” Because the district court did not even consult the Guidelines, this condition was not met; the waiver is not binding; and we have…