Opinion of the Court — United States v. Jimenez-Gutierrez

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Type: Opinion of the Court
Filed: June 13, 2002
Case: United States v. Jimenez-Gutierrez
Case status: Decided

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MEMORANDUM ** Joel Jimenez-Gutierrez appeals his jury-trial conviction and eighty-four month sen *306 tence imposed for attempted re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, United States v. Aguilar, 756 F.2d 1418, 1421 (9th Cir.1985), and we reverse and remand. Jimenez-Gutierrez contends that the district court erred by permitting the jury to consider and return a guilty verdict for attempted re-entry, an offense that had been stricken from the indictment during a pretrial proceeding. The government concedes that the district court erred in light of Aguilar, 756 F.2d at 1424-25 (reversing where defendant was convicted of an offense that had been effectively dismissed from the indictment), and United States v. Pazsint, 703 F.2d 420, 423-24 (9th Cir.1983) (reversing conviction where jury was instructed on an offense not charged in the indictment). Accordingly, the judgment of conviction is reversed. Pazsint, 703 F.2d at 425 . 1 REVERSED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the *306 courts of this circuit exc…

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