United States v. Murillo

548 F.3d 1256, 2008 U.S. App. LEXIS 24304, 2008 WL 5049914

Opinion

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 violation of 8 U.S.C. § 1326. The district court imposed a suspended 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 district 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 sentence, 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 RESEN-TENCING BY A DIFFERENT DISTRICT JUDGE.