Rodriguez-Luna

MEMORANDUM *

Jose Rodriguez-Luna (“Rodriguez-Luna”) appeals his sentence of 21 months following a guilty plea to reentry after deportation in violation of 8 U.S.C. § 1326 (a). 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and we vacate and remand.

Rodriguez-Luna contends that the district court violated Federal Rule of Criminal Procedure 32 by refusing either to rule on or to declare that he would not consider for sentencing a matter disputed by the parties, namely, whether Rodriguez-Luna had been a passenger or the smuggler when apprehended by Border Patrol. We review de novo the district court’s compliance with Rule 32. United States v. Saeteurn, 504 F.3d 1175, 1178 (9th Cir.2007). That rule provides: “At sentencing, the court ... must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing[.]” Fed. R.Crim. Proc. 32(i)(3)(B). “Rule 32[ ] requires the sentencing court to expressly resolve factual conflicts or to expressly determine that no…