United States v. Ortmann

320 F. App'x 693

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2009
• Docket: No. 08-50168
• Status: Published

Opinion

MEMORANDUM

**

The government appeals the sentence imposed following Justin Douglas Ort-mann’s guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court suspended the imposition of sentence and imposed a five year term of probation with a condition that Ortmann spend twelve months in custody during the probationary period. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

The government argues that the district court lacked the authority to suspend the imposition of sentence, and to impose a fixed term of imprisonment as a condition of probation. We agree. See United States v. Murillo, 548 F.3d 1256, 1257 (9th Cir.2008) (explaining that district courts do not have the power to suspend the imposition of a sentence, nor can a district court impose a constant period of imprisonment as a condition of probation); see also United States Sentencing Guidelines Manual, Ch. 7, Part A, § 2(a) (2007). Accordingly, we vacate and remand the sentence.¹

This panel retains jurisdiction over any future appeals in this case.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . We note that the district court did not have the benefit of our decision in Murillo at the time this case was decided.