United States v. Ruben Perez-Castillo , 363 F. App'x 501 ( 2010 )

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NOT FOR PUBLICATION JAN 26 2010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