Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

MEMORANDUM^** 

Benjamin Demetrio Antonio-Morales appeals the district court's imposition of a twenty-four month sentence for his conviction on one count of transportation of illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). In imposing this sentence, the sentencing judge departed upward from the guideline range of 2-8 months based on the fact that the appellant led the arresting officers on a high-speed car chase. Antonio concedes that this is a permissible basis for departure, but argues on appeal that the degree of departure is unreasonable.

We hold that the sentence must be vacated and the case remanded for resentencing. The district judge based the sentence on his own past sentencing practice in similar cases. While we understand how some of our previous cases might have led the district court to believe that Antonio's sentence would be affirmed, see, for example, United States v. Ramirez-De Rosas, 873 F.2d 1177 (9th Cir. 1989), our case law has since come to require that the sentencing judge make reference to the guidelines in determining the degree of an upward departure. See United States v. Perez-Magana, 929 F.2d 518, 521-23 (9th Cir. 1991) (stating rule and collecting cases). The district court did not refer to the guidelines to justify the degree of departure in this case, and so we must vacate and remand for resentencing.

We wish to point out two issues that may affect resentencing in this case. First, we urge the district court to take some guidance from Sec. 3C1.2 of the Sentencing Guidelines, which is entitled "Reckless Endangerment During Flight." While the judge correctly noted at the sentencing hearing in this case that the amendment was not effective at the time the appellant was sentenced, we think it wholly proper to make reference to the amendment as an indication of the sort of departure the Sentencing Commission considers appropriate in cases involving high-speed car chases. We note that, had this amendment been in effect at the time of sentencing, Antonio's guideline range would have been 6-12 months. Because he has been in custody since May 21, 1990, his sentence would be served in full by May 21, 1991.

Second, we note that this Court has heard oral argument in United States v. Lira-Barraza, 897 F.2d 981 (9th Cir.), reh. granted en banc, 909 F.2d 1370 (1990). While we cannot know whether the opinion will issue in that case before Antonio is resentenced, and do not believe that resentencing should be delayed pending its issuance, the opinion will surely cast further light on this Circuit's approach to upward departures.

We vacate the appellant's twenty-four month sentence and remand the case for resentencing.