UNITED STATES of America, Plaintiff-Appellee, v. Roberto GARCIA-GARCIA, a.k.a. Enrique Garcia-Garcia, Defendant-Appellant, 485 F. App'x 236

MEMORANDUM Roberto Garcia-Garcia appeals from the 57-month sentence imposed following his guilty-plea conviction to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing. The parties agree, and we concur, that the district court erred in imposing a 16-level increase in Garcia-Garcia’s base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i), because the documentation submitted by the government did not provide clear and convincing evidence that Garcia-Garcia had a prior drug-trafficking conviction.

See United States v. Bonilla-Montenegro, 331 F.3d 1047, 1050 (9th Cir.2003) (government must prove pri- or conviction by clear and convincing evidence when it seeks a 16-level sentencing enhancement). Accordingly, we vacate the judgment and remand for resentencing. Given the government’s representation that the documents in the record are the only available documents concerning Garcia-Garcia’s pri- or offense, on remand the district court is directed to calculate the advisory Sentencing Guidelines range by applying an enhancement of no more than eight levels under U.S.S.G. § 2L1.2(b).

Garcia-Garcia’s request for judicial notice is granted. The clerk shall issue the mandate forthwith. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.