United States v. Romero

MEMORANDUM ** Francisco Isabel Romero appeals from his 144-month sentence imposed for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B), possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A), and bringing in and harboring illegal aliens in violation of 8 U.S.C. § 1324 (a)(l)(A)(iii). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate and remand. Romero contends that the district court improperly relied on his citizenship, multicultural background and bilingual ability during sentencing and that the district court had no basis for concluding that “statistically, he’s the kind of person that would engage in this kind of conduct in the future.” We conclude that the district court abused its discretion by considering Romero’s race and national origin in contravention of U.S.S.G § 5H1.10, which states that such factors are not relevant in the determination of a sentence. We further conclude that the district court erred by relying on unfounded assumptions as to Romero’s statistical likelihood of recidivism. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007); see also United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir.1989) (concluding that the district court may not consider improper, inaccurate or mistaken information, and may not make unfounded assumptions in imposing sentence). VACATED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provid *691 ed by 9th Cir. R. 36-3.