                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 16 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-30367

               Plaintiff - Appellee,              D.C. No. 1:13-cr-00032-DWM

  v.
                                                  MEMORANDUM*
THEO SUMMERS BUFFALO
BULLTAIL,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                           Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Theo Summers Buffalo Bulltail appeals from the 120-month sentence

imposed following his jury-trial conviction for assault on a federal officer, in




          *
             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).
violation of 18 U.S.C. § 111(a)(1) and (b). We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate and remand for resentencing.

      Bulltail contends that the district court abused its discretion by imposing a

sentence 83 months above the high end of the advisory sentencing Guidelines

range and twice as long as the sentence recommended by the government. He

argues that the district court improperly focused on general deterrence aimed at the

Crow Nation rather than conducting an individualized sentencing, and that the

district court’s statements demonstrate that he was given a harsher sentence

because he is a Crow Indian.

      Although sentencing judges are afforded broad discretion to consider any

information concerning the background, character, and conduct of a defendant in

imposing a sentence, see Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), a

defendant’s race or ethnicity may not be considered. See U.S.S.G. § 5H1.10;

United States v. Borrero-Isaza, 887 F.2d 1349, 1352-56 (9th Cir. 1989) (per

curiam) (imposing a stricter sentence on the basis of national origin violated

defendant’s due process rights). Even the appearance of impropriety requires a

remand for resentencing. See Borrero-Isaza, 887 F.2d at 1355. Here, the district

court’s remarks at sentencing suggest that Bulltail may have received a

significantly higher sentence than he would have otherwise received because he is

                                          2                                      13-30367
a Crow Indian and the district court wished to use him as an example to the Crow

Nation. We do not review this sentence for reasonableness. Therefore, we vacate

Bulltail’s sentence and remand for resentencing.

      VACATED and REMANDED.




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