                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 26 2010

                                                                        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. 09-50060

               Plaintiff - Appellee,             D.C. No. 3:08-cr-04440-LAB

   v.
                                                 MEMORANDUM *
 RUBEN PEREZ-CASTILLO,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Ruben Perez-Castillo appeals from the 55-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we vacate and remand.

         Perez-Castillo contends, and the government concedes, that his sentence

should be vacated and remanded because he was denied his right of allocution at

sentencing. The district court failed to accord Perez-Castillo the right to allocute at

sentencing and “[w]e are not able to say that the district court could not have

lowered [Perez-Castillo’s] sentence had he been given an opportunity to speak”

thus, we vacate and remand for resentencing. See United States v. Gunning, 401

F.3d 1145, 1149 (9th Cir. 2005).

         In light of this disposition, we decline to address Perez-Castillo’s argument

that his sentence is substantively unreasonable.

         Finally, we deny Perez-Castillo’s request for reassignment to a different

district court judge. See United States v. Rapal, 146 F.3d 661, 665-66 (9th Cir.

1998).

         SENTENCE VACATED and REMANDED.




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