United States v. Ramon Andrade-Castillo

MEMORANDUM

Ramon Andrade-Castillo (“Andrade”) appeals the district court’s revocation of a term of probation that was imposed following Andrade’s 2011 conviction for attempted illegal reentry under 8 U.S.C. § 1326 . Andrade also appeals his sentence for a separate 2013 illegal reentry conviction. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and remand in part.

In 2011, the district court sentenced An-drade to five years’ probation and six months “time served” for one count of attempted illegal reentry. This combination of probation plus a term of imprisonment was unlawful under 18 U.S.C. § 3561 . See United States v. Forbes, 172 F.3d 675, 676 (9th Cir.1999) (“The statute precludes the imposition of both probation and straight imprisonment.”). We reiterate that district courts lack statutory authority to impose both probation and a term of imprisonment for the same offense, even when the custodial component of the sentence is limited to time served. Nonetheless, Andrade may not collaterally attack the validity of his term of probation in a subsequent revocation hearing. See United States v. Castro-Verdugo, 750 F.3d 1065, 1071 (9th Cir.2014). We therefore…