United States v. Tien Nguyen

MEMORANDUM *

The memorandum disposition, United States v. Nguyen, 307 Fed.Appx. 117 (9th Cir.2009), is hereby withdrawn.

Tien Nguyen (“Nguyen”) appeals his sentence for possession of stolen goods in violation of 18 U.S.C. §§ 2315 and 2. We reverse the district court’s holding that Nguyen waived his right to object to his presentence report (“PSR”). We remand to the district court to reevaluate Nguyen’s sentence based on the information now available concerning his 2003 California misdemeanor conviction.

Nguyen waived his right to appeal his sentence in a plea agreement. Yet the government did not raise appeal waiver in its briefs. We conclude that the government implicitly waived any appeal waiver argument it may have had and reach the merits of the case. See United States v. Garcia-Lopez, 309 F.3d 1121, 1122-23 (9th Cir.2002).

Nguyen showed good cause under Fed.R.Crim.P. 32(i)(l)(D) for first objecting to his PSR at his sentencing hearing. It was an abuse of discretion for the district court to not permit this late objection. Federal Rule of Criminal Procedure 32 requires that parties state any objections to the PSR within 14 days of receiving it. *587 Fed.R.Crim.P. 32(f)(1).…