United States v. Luis Montenegro-Rojo

ORDER

The opinion filed April 12,1990, is hereby WITHDRAWN. The opinion submitted herewith shall be filed in its stead.

OPINION

Defendant-Appellant Luis Montenegro-Rojo was convicted of illegal entry into the United States in violation of 8 U.S.C. § 1325 (a) (1988). His sentence was governed by the Sentencing Reform Act of 1984 (“the Act”), 18 U.S.C. §§ 3551-3586 (1988). The district court departed upward from the sentence indicated by the Sentencing Guidelines (“the guidelines”) and imposed a sentence of twenty-one months of imprisonment followed by one year of supervised release. Montenegro-Rojo argues on appeal that this departure was both inappropriate and unreasonable. In addition, he alleges that because his prison sentence, combined with his term of supervised release following incarceration, results in a total sentence of thirty-one months, it exceeds the statutory maximum of two years of imprisonment set by 8 U.S.C. § 1325 (a) (1988) and is therefore illegal.

Although we believe that the district court identified permissible grounds for departure in this case, we must remand for resentencing because the court failed to explain how it arrived at the degree of its…