United States v. Kelaukila Estabilio

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2021
• Docket: 20-10247
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10247

Plaintiff-Appellee, D.C. No. 1:20-cr-00010-DKW-1

v. MEMORANDUM* KELAUKILA ESTABILIO,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick K. Watson, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Kelaukila Estabilio appeals from the district court’s judgment and challenges

the 60-month sentence imposed following her guilty-plea conviction for wire fraud

in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291,

and we vacate the judgment and remand for resentencing.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Estabilio contends that her above-Guidelines sentence is unconstitutional

and unreasonable because the district court relied on her race to justify the upward

variance. At sentencing, the court referred to Estabilio as a “Hawaiian” who stole

from “other Hawaiians.” It is unclear from the record whether this was an

impermissible reference to Estabilio’s race. Because even the appearance that race

was considered at sentencing justifies remand, we vacate Estabilio’s sentence and

remand for resentencing. See United States v. Borrero-Isaza, 887 F.2d 1349, 1355

(9th Cir. 1989). In light of this disposition, we do not reach Estabilio’s other

challenges to her sentence.

Estabilio also requests that we remand for resentencing before a different

district judge. While we have no doubts as to the district judge’s impartiality or

ability to assess this case fairly, we grant Estabilio’s request to preserve “the

appearance of justice.” See United States v. Quach, 302 F.3d 1096, 1103-04 (9th

Cir. 2002) (remanding to a different district judge for resentencing to preserve the

appearance of justice and clarifying that no criticism of the district judge was

intended). We instruct the Clerk of the District Court for the District of Hawaii to

reassign this case to a different district court judge upon remand.

VACATED and REMANDED.

2 20-10247