Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1988)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Irma NUNO-PARA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jesus GARCIA-REYES, Defendant-Appellant.
Nos. 88-5163, 88-5217.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 7, 1988* .Decided Jan. 10, 1989.
Before NELSON, BEEZER, Circuit Judges, and REA,** District Judge.
MEMORANDUM***
Irma Nuno-Para and Jesus Garcia-Reyes appeal the district court's sentences imposed upon them following guilty pleas to one count of aiding and abetting the transportation of an alien, in violation of 8 U.S.C. § 1324(a) (1) (B) and 18 U.S.C. § 2.
Pursuant to the Sentencing Reform Act of 1984 (Act) and the 1987 Federal Sentencing Guidelines (Guidelines), the district court sentenced Nuno-Para to four years imprisonment followed by two years supervised release, and sentenced Garcia-Reyes to three years imprisonment followed by two years supervised release. The district court also fined Garcia-Reyes $9,758.00. Nuno-Para and Garcia-Reyes contend that the district court improperly departed from the Guidelines in sentencing them.
We need not reach the merits of this contention. This court has held that the Guidelines are unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1268 (9th Cir. 1988). In addition, we have held that the Act's supervised release provision is unconstitutional because it is not severable from the Act. United States v. Nuno-Huizar, No. 88-5192, slip op. 15595, 15600 (9th Cir. December 28, 1988); United States v. Jackson, 857 F.2d 1285, 1286 (9th Cir. 1988).
Therefore, the sentences are vacated and the cases are remanded for resentencing consistent with Gubiensio-Ortiz, Nuno-Huizar and Jackson.1
VACATED and REMANDED.
The panel unanimously finds this case suitable for submission on the record and briefs without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
Honorable William J. Rea, United States District Judge for the Central District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
The provision of the Act limiting the availability of good time credits also is not severable from the Act. Gubiensio-Ortiz, 857 F.2d at 1268. Therefore, on remand the district court may consider good time credits, if applicable
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