United States v. Kelaukila Estabilio ( 2021 )

NOT FOR PUBLICATION FILED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