                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10061

              Plaintiff - Appellant,             D.C. No. 2:05-cr-00535-NVW-1

  v.
                                                 MEMORANDUM *
NAPOLEON FLORES-ARVIZU,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                        Argued and Submitted May 16, 2012
                             San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       The government appeals the district court’s order dismissing without

prejudice an indictment charging Napoleon Flores-Arvizu (“Flores”) with

attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326. As the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
parties are familiar with the facts, procedural history, and arguments, we will not

recount them here. We affirm.

      The problem posed by this case results primarily from acts of the

government. Flores completed the term of incarceration to which he had been

sentenced and was thereafter immediately deported. That meant that he could not

be brought to court for resentencing, as a prior panel of this court subsequently

ordered. But the government did not advise that panel of the circumstances, so that

panel did not have reason to try to craft a different resolution for the case before it.

The government said nothing to this court about the problem until two years had

passed after issuance of the mandate, at which time this court declined to recall the

mandate. In addition, the government has acknowledged that it has not offered

Flores the opportunity to re-enter the country for the purpose of appearing at a

resentencing hearing. It is agreed that resentencing cannot proceed without him.

      Nonetheless, the government wants the district court to hold the criminal

prosecution of Flores open on its docket indefinitely or, in the government’s own

words, “virtually in perpetuity,” so that Flores can be resentenced if he is at some

future date found within the United States. The reason for the request has nothing

to do with this case, because there is no reason to expect that Flores would be

resentenced in this case to a longer term that he has already served. Instead, the


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government is concerned with the potential impact on any future sentence that

might be imposed upon Flores if he is later found in this country and convicted of

another unlawful reentry or another criminal offense. Specifically, the government

argues that preservation of his conviction in the current case would trigger an

enhancement and increase his criminal history score under the advisory sentencing

guidelines for that hypothetical future sentencing.

      But this concern is one of form more than substance. The sentencing

guidelines are now advisory. See United States v. Booker, 543 U.S. 220 (2005). In

the event Flores appears before another district court for sentencing in the future,

that court would not be bound by the calculations that concern the government.

Perhaps more to the point, the government would be able to relate this history to

that future court, including the fact that Flores had been convicted of this prior

offense, and that court would be able to give due consideration to Flores’s actual

history.

      In these circumstances, it appears to us that the district court’s practical

resolution, which effects “economy of time and effort for itself, for counsel, and

for litigants,” should not be disturbed. See Landis v. N. Am. Co., 299 U.S. 248,

254 (1936) (“every court” has the inherent power to “control the disposition of the




                                           3
causes on its docket with economy of time and effort for itself, for counsel, and for

litigants”).

       AFFIRMED.




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