                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 07 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50584

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01740-LAB-1

  v.
                                                 MEMORANDUM*
RAMON ANDRADE-CASTILLO,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50595

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03483-LAB-1

  v.

RAMON ANDRADE-CASTILLO,

              Defendant - Appellant.


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

                       Argued and Submitted August 5, 2014
                               Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

      Ramon Andrade-Castillo (“Andrade”) appeals the district court’s revocation

of a term of probation that was imposed following Andrade’s 2011 conviction for

attempted illegal reentry under 8 U.S.C. § 1326. Andrade also appeals his sentence

for a separate 2013 illegal reentry conviction. We have jurisdiction under 28

U.S.C. § 1291, and we affirm in part and remand in part.

      In 2011, the district court sentenced Andrade to five years’ probation and six

months “time served” for one count of attempted illegal reentry. This combination

of probation plus a term of imprisonment was unlawful under 18 U.S.C. § 3561.

See United States v. Forbes, 172 F.3d 675, 676 (9th Cir. 1999) (“The statute

precludes the imposition of both probation and straight imprisonment.”). We

reiterate that district courts lack statutory authority to impose both probation and a

term of imprisonment for the same offense, even when the custodial component of

the sentence is limited to time served. Nonetheless, Andrade may not collaterally

attack the validity of his term of probation in a subsequent revocation hearing. See




                                           2
United States v. Castro-Verdugo, 750 F.3d 1065, 1071 (9th Cir. 2014).1 We

therefore affirm the district court’s revocation of probation and its resulting

sentence.

      During sentencing for Andrade’s 2013 illegal reentry conviction, the district

court made reference to the cost of apprehending and prosecuting Andrade for

repeated illegal reentry. District courts may not consider cost as a sentencing

factor. See United States v. Tapia-Romero, 523 F.3d 1125, 1127 (9th Cir. 2008).

Because we find the sentencing record ambiguous as to whether the district court

materially relied on this impermissible factor, we remand to the district court to

clarify the basis for its sentence and determine in the first instance whether

resentencing is required.

      We reject, however, Andrade’s other allegations of procedural error. The

district court did not materially rely on a belief that Andrade had been warned

about reentering the country eighteen times, a fact not included in the record.

Rather, the district court’s mention of warnings was ancillary to its discussion of



      1
        We encourage defense counsel to timely object to unlawful terms of
probation, and if necessary, file either a motion to correct the sentence under Rule
35 of the Federal Rules of Criminal Procedure or a notice of appeal. In addition, in
some circumstances a habeas petition under 28 U.S.C. § 2255, see Castro-
Verdugo, 750 F.3d at 1071, will be an appropriate vehicle to challenge an unlawful
term of probation.

                                           3
the need for deterrence in light of Andrade’s six prior convictions and twelve prior

deportations—facts supported by the record. Thus, the district court did not

commit procedural error by “using clearly erroneous facts when calculating the

Guidelines range or determining the sentence.” United States v. Armstead, 552

F.3d 769, 776 (9th Cir. 2008). Nor did the district court procedurally err in

imposing supervised release. We have treated the imposition of supervised release

as an application of Sentencing Guideline § 5D1.1—rather than a departure from

the Guidelines requiring greater explanation—where the district court finds

advisable an added measure of deterrence. See Castro-Verdugo, 750 F.3d at 1072.

      Finally, “[b]ecause we remand on a procedural error, we decline to reach

[Andrade’s] argument regarding the substantive reasonableness of his sentence.”

United States v. Flores, 725 F.3d 1028, 1042 (9th Cir. 2013); see also Gall v.

United States, 552 U.S. 38, 51 (2007).

      AFFIRMED in part; REMANDED in part.




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