UNITED STATES v. VARELA (2020)

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Constantino Salmon VARELA, aka Constantino S. Varela, Defendant-Appellant.

No. 19-10185

Decided: June 16, 2020

Before: SCHROEDER and BUMATAY, Circuit Judges, and MORRIS,** District Judge.

Robert Lally Miskell, Assistant U.S. Attorney, USTU- Office of the US Attorney, Tucson, AZ, for Plaintiff-Appellee Michael L. Burke, Esquire, Assistant Federal Public Defender, FPDAZ-Federal Public Defenders Office, Phoenix, AZ, for Defendant-Appellant

MEMORANDUM ***

Constantine Salmon Varela appeals the district court’s sentence of concurrent terms of 72 months in prison, to be followed by three years of supervised release for violating 18 U.S.C. § 922, 18 U.S.C. § 924(a)(2), Possession of Firearms by a Convicted Felon, and 26 U.S.C. § 5861(d), 26 U.S.C. § 5871, and 26 U.S.C. § 5841, Unlawful Possession of Unregistered Destructive Device. On appeal, the government agrees with Varela that the sentence should be vacated and remanded to the district court for resentencing, because the government withheld Varela’s request for a one-point reduction under USSG § 3E1.1(b) for accepting responsibility of the crimes. We therefore vacate and remand for resentencing on an open record. See United States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc) (“[A]s a general matter, if a district court errs in sentencing, we will remand for resentencing on an open record[.]”).

VACATE AND REMAND.

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