United States v. Frank C. Doering, AKA Carl Marty Doering

Doering pleaded guilty to the crime of felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). In imposing Doer-ing’s sentence, the district court departed upward from the 18 to 24 month range indicated by the Sentencing Guidelines (the Guidelines) and imposed a five year custodial sentence — the maximum term for the conviction pursuant to 18 U.S.C. § 924 (a) — and a three year term of supervised release. The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We vacate and remand.

I

Initially, Doering contends that the sum of his supervised release term and the term of his custodial sentence may not exceed the statutory maximum term of imprisonment. This argument is foreclosed by our recent decisions in United States v. Montenegro-Rojo, 908 F.2d 425 (9th Cir.1990), and United States v. Robertson, 901 F.2d 733 (9th Cir.1990), where we held that “a sentencing judge is free to impose a period of supervised release regardless of the length of time of the defendant’s prison term.” Montenegro-Rojo, 908 F.2d at 434 ; see also Robertson, 901 F.2d at 735…