United States v. Ruben Perez-Castillo
UNITED STATES of America, Plaintiff-Appellee, v. Ruben PEREZ-CASTILLO, Defendant-Appellant
- Area
- other
- Panel
- Robert R. Beezer (author), Jay S. Bybee, Stephen S. Trott
Analysis
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Opinion
FILED NOT FOR PUBLICATION JAN 26 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50060 Plaintiff - Appellee, D.C. No. 3:08-cr-04440-LAB v. MEMORANDUM * RUBEN PEREZ-CASTILLO, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted January 11, 2010 ** Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Ruben Perez-Castillo appeals from the 55-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
SZ/Research States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we vacate and remand.
Perez-Castillo contends, and the government concedes, that his sentence should be vacated and remanded because he was denied his right of allocution at sentencing. The district court failed to accord Perez-Castillo the right to allocute at sentencing and “[w]e are not able to say that the district court could not have lowered [Perez-Castillo’s] sentence had he been given an opportunity to speak”
thus, we vacate and remand for resentencing. See United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005).
In light of this disposition, we decline to address Perez-Castillo’s argument that his sentence is substantively unreasonable.
Finally, we deny Perez-Castillo’s request for reassignment to a different district court judge. See United States v. Rapal, 146 F.3d 661, 665-66 (9th Cir.
1998).
SENTENCE VACATED and REMANDED.
SZ/Research 2 09-50060