110 F3d 71 United States v. Sandoval B

110 F.3d 71

UNITED STATES of America, Plaintiff-Appellee,
v.
Epigmenio SANDOVAL, a/k/a Seal B, Defendant-Appellant.

No. 96-50257.

United States Court of Appeals, Ninth Circuit.

Submitted March 7, 1997.*
Decided March 21, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BROWNING and KLEINFELD, Circuit Judges, and MERHIGE,** Senior District Judge.

MEMORANDUM***

The district court's instructions were not misleading. If Sandoval knew he was making a false representation or acted with reckless indifference to whether his representations were true or false, he acted with fraudulent intent. See, e.g., United States v. Cusino, 694 F.2d 185, 187 (9th Cir.1982). Conversely, the jury had to acquit Sandoval of mail fraud if it found Sandoval believed the misrepresentations to be true.

The parties agree that the district court erred by increasing Sandoval's offense level because of the unusual vulnerability of his victims. See United States v. Castellanos, 81 F.3d 108 (9th Cir.1996). As a general rule, when a district court imposes a sentence in excess of its sentencing authority, we vacate the sentence and allow the district court to consider all relevant sentencing factors on remand. United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994). Because Sandoval has stated no compelling reason for departing from this general rule, we reject his request for a limited remand.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.


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*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

Honorable Robert R. Merhige, Senior United States District Judge for the Eastern District of Virginia, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3