United States v. Villa-Lopez

MEMORANDUM ** Arturo Villa-Lopez appeals from the district court’s judgment imposing a 30-month sentence for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 (a)(1),. (b)(l)(B)(vii), and 846, and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(l)(B)(vii). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand for resentencing. Villa-Lopez contends that the district court erred at sentencing because it concluded that, if it applied the safety valve, then it must impose a sentence within the Guidelines range and deny any downward variance based on the aberrant nature of Villa-Lopez’s offense. We conclude that the record indicates that the district court misunderstood its discretion here. Following United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), when a defendant qualifies for the safety valve, the district court is statutorily required to apply the Guidelines in an advisory manner along with the other factors contained in 18 U.S.C. § 3553 (a). See 18 U.S.C. § 3553 (f); United States v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir.2006). VACATED and REMANDED for re-sentencing. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.