United States v. Jimenez-Gutierrez

37 F. App'x 305

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2002
• Docket: No. 01-10060; D.C. No. CR-00-00310-ROS
• Status: Published

Opinion

MEMORANDUM

**

Joel Jimenez-Gutierrez appeals his jury-trial conviction and eighty-four month sentence 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.

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.