United States of America, Plaintiff-appellee, v. Francisco Javier Manon-gomez, Defendant-appellant, 981 F.2d 1260 (9th Cir. 1992)

MEMORANDUM^** 

Francisco Javier Manon-Gomez appeals his conviction and sentence, following a jury trial, for illegal reentry into the United States in violation of 8 U.S.C. § 1326. Manon-Gomez contends that the district court erred by (1) giving three jury instructions that were improperly argumentative, and (2) imposing a sentence that exceeded the statutory maximum. We affirm the conviction, vacate the sentence, and remand for resentencing.

* We review the district court's formulation of the jury instructions for an abuse of discretion. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1989). A claim of error relating to jury instructions must be evaluated in the context of the entire trial, and the "trial judge is given substantial latitude in tailoring the instructions so long as they fairly and adequately cover the issues presented." United States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir. 1984) (citation omitted). Applying these standards, we find no error in the district court's jury charge. The instructions challenged by Manon-Gomez correctly stated the applicable law and were not argumentative.

II

The indictment against Manon-Gomez did not allege a prior felony conviction and, therefore, it charged him with a violation of 8 U.S.C. § 1326(a), simple reentry after deportation. See United States v. Campos-Martinez, No. 91-50756, slip op. 11877 (9th Cir. Oct. 5, 1992). "The maximum sentence for that charge is two years in prison." United States v. Arias-Granados, 941 F.2d 996, 997 (9th Cir. 1991). Manon-Gomez's 33-month sentence exceeded the statutory maximum. Therefore, we vacate his sentence and remand for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.