UNITED STATES of America, Plaintiff-Appellant,
v.
Augustine Garcia MURILLO, Defendant-Appellee.
No. 07-50462.
United States Court of Appeals, Ninth Circuit.
Submitted November 18, 2008.[*] Filed December 1, 2008.Thomas C. O'Brian, United States Attorney, and Christine C. Ewell, Anne M. Voights, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant.
Sean K. Kennedy, Federal Public Defender, and Richard D. Goldman, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellee.
Before: PAMELA ANN RYMER and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN,[**] District Judge.
ORDER
The United States appeals the sentence imposed following Augustine Garcia Murillo's guilty plea to being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326. The district court imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody *1257 during the probationary period. We reverse the district court and vacate the sentence.
Under our current sentencing scheme, district courts do not have the power to suspend the imposition of a sentence. U.S. SENTENCING GUIDELINES MANUAL, Ch. 7, Part A, § 2(a) (2007). See also United States v. Mueller, 463 F.3d 887, 889 (9th Cir.2006). Further, a district court may not impose a constant period of imprisonment as a condition of probation. United States v. Forbes, 172 F.3d 675, 676 (9th Cir.1999). Under the circumstances, we reverse the district court, vacate the sentence, see id., and direct that on remand the case be reassigned to a different district judge for resentencing. See Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1165-66 (9th Cir.2007).
REVERSED; SENTENCE VACATED; AND REMANDED FOR RESENTENCING BY A DIFFERENT DISTRICT JUDGE.
NOTES
[*] The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
[**] The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation.