United States v. Ramon Andrade-Castillo

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 07 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 14-50511

Plaintiff - Appellee, D.C. No. 3:13-cr-03483-LAB-

v.

MEMORANDUM*

RAMON ANDRADE-CASTILLO,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted August 7, 2015**

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

We previously remanded Ramon Andrade-Castillo’s (Andrade) appeal of the

sentence imposed on his 2013 illegal reentry conviction because the record was

ambiguous as to whether the district court impermissibly relied on prosecutorial

* 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). costs as a sentencing factor. See United States v. Tapia-Romero, 523 F.3d 1125,

1127 (9th Cir. 2008). We instructed the district court to clarify the basis for its

sentence…

dissenting:

I respectfully dissent.

1. I would hold that a presumption of vindictiveness did not arise in this case because it is not clear that the original aggregate sentence of 18 months and three years’ supervised release is less harsh than the new sentence of five years’ probation, *882 even considering that Andrade-Castillo served all but 18 days of his original sentence. Andrade-Castillo was released from prison early, and now he does not have a prison sentence on his record for the convictions at issue in this appeal, which could reduce future sentences if he were to re-offend. Thus, Andrade-Castil-lo’s new sentence is better in some- regards and worse in other regards. Moreover, Andrade-Castillo did not object to this new sentence. Indeed, at resentencing, everyone seemed in agreement that this was a better sentence than his original sentence. Accordingly, there is not a reasonable likelihood that the new sentence has been imposed for a vindictive purpose. See United States v. Garcia-Guizar, 234 F.3d 483 , 489 (9th Cir.2000). There is also no evidence of actual vindictiveness, and Andrade-Castillo does not appear to claim otherwise.

2. Moreover, I would not find that…

MEMORANDUM **

We previously remanded Ramon An-drade-Castillo’s (Andrade) appeal of the sentence imposed on his 2013 illegal reentry conviction because the record was ambiguous as to whether the district court impermissibly relied on prosecutorial costs as a sentencing factor. See United States v. Tapia-Romero, 523 F.3d 1125, 1127 (9th Cir.2008). We instructed the district court to clarify the basis for its sentence and determine in the first instance whether resentencing was required. The district court did not do so, but instead imposed a sentence of time served plus a five-year term of probation. Andrade failed to object, but now argues that the district court plainly erred in imposing this more severe sentence.

The record reveals a certain amount of confusion at the resentencing hearing which resulted in what can only be described as plain error.

*881 1. The district court complied with the “express instructions,” but not “the spirit ... of our mandate,” United States v. Paul, 561 F.3d 970, 973-75 (9th Cir.2009) (per curiam), when it acknowledged that it did consider cost in imposing the original sentence and stated “I won’t consider that this time,” but failed to explain…