U.S. v. Chihuahua-Martinez

Full title: UNITED STATES of America, Plaintiff-Appellant, v. Jesus…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 24, 2008

301 F. App'x 685 (9th Cir. 2008)

Opinion

No. 07-50536.

Submitted November 18, 2008.^_

_ The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed November 24, 2008.

Michael J. Raphael, Esq., Office of the U.S. Attorney, Criminal Division, Anne M. Voigts, Esq., United States Attorney, Asst U.S. Attorney, Narcotics Section, Los Angeles, CA, for Plaintiff-Appellant.

Thomas T. Nishi, Esq., Caldwell Leslie Proctor Pettit, Los Angeles, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CR-07-01166-R.

Before: RYMER and M. SMITH, Circuit Judges, and KORMAN,^__ District Judge.

__ The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation.

MEMORANDUM^___

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

The United States appeals the sentence imposed following Jesus Chihuahua-Martinez'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. For the reasons stated in United States v. Murillo, 548 F.3d 1256 (9th Cir. 2008), we reverse the district court, vacate the sentence, and direct that on remand the case be sent to a different district judge for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING BY A DIFFERENT DISTRICT JUDGE.