United States v. Jesse Marshall Walker, Jr. , 94 F.3d 654 ( 1996 )

94 F.3d 654

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesse Marshall WALKER, Jr., Defendant-Appellant.

No. 95-50491.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1996.
Decided Aug. 16, 1996.

Before: REINHARDT, HALL, and LEAVY Circuit Judges.

MEMORANDUM*

This is the defendant's second appeal of his sentence on the basis that the district court failed properly to explain the extent of the upward departure imposed. The first time, we vacated and remanded because the district court had not articulated reasons for the extent of the departure. United States v. Walker, 62 F.3d 1427 (9th Cir.1995) (Table) (citing United States v. Hernandez-Rodriguez, 975 F.2d 622, 629 (9th Cir.1992)).

On remand, the district judge imposed the same 46-month sentence and again failed to explain the reasoning behind the extent of the departure. For this reason, we vacate the sentence and remand to a different judge. See United States v. Huckins, 53 F.3d 276, 280 (9th Cir.1995). Because we vacate the sentence, we need not consider defendant's other contention--that the district court erred by failing to adopt the government's recommendation of a downward departure on the basis of his substantial assistance pursuant to U.S.S.G. § 5K1.1.

SENTENCE VACATED and REMANDED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3