United States of America, Plaintiff-appellee, v. Juvenile (ccw), Defendant-appellant, 15 F.3d 1092 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 15 F.3d 1092 (9th Cir. 1993)

Argued and Submitted Dec. 15, 1993. Decided Dec. 23, 1993

Before: GOODWIN, CANBY and KOZINSKI, Circuit Judges.


CCW appeals his sentence for two counts of theft under 18 U.S.C. § 661. We review whether the district court's upward departure from the guidelines was proper under United States v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991).

The district court's stated reason for departing upward--so CCW's sentence would be equal to those of the other youths involved, TR (4/2/93) at 8--is not permissible. United States v. Enriquez-Munoz, 906 F.2d 1356, 1360 (9th Cir. 1990); United States v. Mejia, 953 F.2d 461, 467 (9th Cir. 1991). Although the court may have had other reasons for departing from the guidelines' sentencing range, reliance on at least one improper factor taints the sentencing decision and requires resentencing without consideration of the impermissible factor. United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1991). We express no view whether the other reasons the court may have relied on would constitute a permissible basis for departure.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3