UNITED STATES of America, Plaintiff-Appellee, v. Francisco MARTINEZ-DIAZ, Defendant-Appellant, 691 F. App'x 849

MEMORANDUM Francisco Martinez-Diaz appeals from the district court’s judgment and challenges the 37-month sentence imposed following his guilty-plea conviction for being a removed 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 resentenc-ing. Martinez-Diaz contends that the district court erred by basing the sentence on an incorrect characterization of his criminal history. The record reflects that, while Martinez-Diaz had prior drug arrests, he did not sustain a drug conviction in 2006 or at any other time.

However, the district court referred to a 2006 drug conviction, and Martinez-Diaz’s history of “drug trafficking,” in the course of explaining why a downward variance was .not warranted. Because there is a reasonable probability that the district court would have imposed a lower sentence had it not mistakenly believed that Martinez-Diaz had prior drug convictions, we vacate and remand for re-sentencing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (selection of sentence based on clearly erroneous facts constitutes procedural error). VACATED and REMANDED for re-sentencing.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.