United States v. 2008-12-01 | 07-50462 | USA V. MURILLO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 07-50462
Plaintiff-Appellant, D.C. No.
v.  CR-07-00897-R
AUGUSTINE GARCIA MURILLO, ORDER
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted November 18, 2008*
Pasadena, California
Filed December 1, 2008
Before: Pamela Ann Rymer and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman,** District Judge.
COUNSEL
Thomas C. O’Brian, United States Attorney, and Christine C.
Ewell, Anne M. Voights, Assistant United States Attorney,
Los Angeles, California, for the plaintiff-appellant.
Sean K. Kennedy, Federal Public Defender, and Richard D.
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
15847

-- 1 of 4 --

Goldman, Deputy Federal Public Defender, Los Angeles, Cal-
ifornia, for the defendant-appellee.
ORDER
The United States appeals the sentence imposed following
Augustine Garcia Murillo’s guilty plea to being an illegal
alien found in the United States following deportation in vio-
lation of 8 U.S.C. § 1326. The district court imposed a sus-
pended sentence and then placed the defendant on probation
for five years with a condition that he spend twelve months
in custody during the probationary period. We reverse the dis-
trict court and vacate the sentence.
Under our current sentencing scheme, district courts do not
have the power to suspend the imposition of a sentence. U.S.
SENTENCING GUIDELINES MANUAL, Ch. 7, Part A, § 2(a) (2007).
See also United States v. Mueller, 463 F.3d 887, 889 (9th Cir.
2006). Further, a district court may not impose a constant
period of imprisonment as a condition of probation. United
States v. Forbes, 172 F.3d 675, 676 (9th Cir. 1999). Under the
circumstances, we reverse the district court, vacate the sen-
tence, see id., and direct that on remand the case be reassigned
to a different district judge for resentencing. See Rhoades v.
Avon Prods, Inc., 504 F.3d 1151, 1165-66 (9th Cir. 2007).
REVERSED; SENTENCE VACATED; AND
REMANDED FOR RESENTENCING BY A DIFFER-
ENT DISTRICT JUDGE.
15848 UNITED STATES v. MURILLO

-- 2 of 4 --

-- 3 of 4 --

PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2008 Thomson Reuters/West.

-- 4 of 4 --