United States of America, Plaintiff-appellant, v. Hector Alba-esqueda, Defendant-appellee, 28 F.3d 108 (9th Cir. 1994)

MEMORANDUM

The government appeals from Alba-Esqueda's judgment of conviction, contending the district court improperly departed from the range of 77 to 96 months arrived at in the presentence report under the Sentencing Guidelines. Alba-Esqueda pleaded guilty to being present in the United States after prior deportations in violation of 8 U.S.C. § 1326(a), (b) (1), (b) (2). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742. We vacate and remand.

The district court departed because, upon Alba-Esqueda's deportations, he was given Immigration and Naturalization Service (INS) Form I-294 which stated that if he returned illegally he would be subject to no more than two years' imprisonment, although the statutory maximum sentence had been increased to 15 years' imprisonment. The district court rejected the argument that the government was estopped from seeking more than a two year sentence, but departed because of what it called the "unfairness" of the INS's conduct. We review de novo whether a factor relied upon as a basis for departure is permissible. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991).

The district court erred in relying on government "mistake" or "misrepresentation" as a basis for departure. As we explained in United States v. Ullyses-Salazar, No. 93-50144, slip op. 6543 (9th Cir. June 20, 1994), a court may not depart based on the content of Form I-294 merely because of perceived government misconduct. We vacate the sentence and remand for the district court to resentence Alba-Esqueda consistent with the holding in Ullyses-Salazar.

VACATED AND REMANDED.

Note: 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.