United States v. Jimenez-Gutierrez

37 F. App'x 305

Opinion

MEMORANDUM**

Joel Jimenez-Gutierrez appeals his jury-trial conviction and eighty-four month sen tence imposed for attempted re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, United States v. Aguilar, 756 F.2d 1418, 1421 (9th Cir.1985), and we reverse and remand.

Jimenez-Gutierrez contends that the district court erred by permitting the jury to consider and return a guilty verdict for attempted re-entry, an offense that had been stricken from the indictment during a pretrial proceeding.

The government concedes that the district court erred in light of Aguilar, 756 F.2d at 1424-25 (reversing where defendant was convicted of an offense that had been effectively dismissed from the indictment), and United States v. Pazsint, 703 F.2d 420, 423-24 (9th Cir.1983) (reversing conviction where jury was instructed on an offense not charged in the indictment). Accordingly, the judgment of conviction is reversed. Pazsint, 703 F.2d at 425.¹

REVERSED and REMANDED.

Footnotes

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1

. In light of our disposition, we do not reach the additional contentions raised in Jimenez-Gutierrez’s opening brief.