993 F.2d 886 (9th Cir. 1993), 92-10182, U.S. v. Soto

Docket Nº:92-10182.
Citation:993 F.2d 886
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francisco J. SOTO, Defendant-Appellant.
Case Date:May 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 886

993 F.2d 886 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francisco J. SOTO, Defendant-Appellant.

No. 92-10182.

United States Court of Appeals, Ninth Circuit

May 19, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted May 11, 1993.

Appeal from the United States District Court for the District of Arizona, No. CR-89-00110-EHC; Earl H. Carroll, District Judge, Presiding.

D.Ariz.

AFFIRMED IN PART AND MODIFIED IN PART.

Before: REINHARDT, TROTT and RYMER, Circuit Judges.

MEMORANDUM [*]

Appellant Francisco J. Soto appeals the sentence and restitution ordered by the district court in the revocation of his probation for Illegal Entry, in violation of 8 U.S.C. § 1325, and Student Loan Fraud, in violation of 20 U.S.C. § 1097(a). The district court revoked Soto's probation for those offenses after he was arrested in Arizona for conspiracy to sell marijuana, and sentenced him to a twelve month concurrent sentence on each of the two counts. Soto now challenges the district court's order, alleging 1) the twelve month sentence for the misdemeanor illegal entry conviction exceeded the statutory maximum; 2) the district court erred in imposing restitution; and 3) "excessive delay" in the appointment of appellate counsel violated due process. 1

We modify the restitution order and affirm the district court in all other respects.

I

Appellant first maintains the one year sentence he received for his conviction for illegal entry, 8 U.S.C. § 1325, exceeds the statutory maximum for that offense. We review de novo the legality of a sentence. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988).

The maximum sentence for misdemeanor illegal entry is six months. 8 U.S.C.§ 1325(a). Thus, as the government concedes, Soto's twelve month sentence was "in excess of the permissible statutory penalty for the crime" and therefore illegal within the meaning of Fed.R.Crim.P. 35(a). United States v. Minor, 846 F.2d 1184, 1187 (9th Cir.1988) (quotations omitted).

However, this issue has been rendered moot by Soto's release from incarceration on December 31, 1992. "A moot action is one in which the parties lack a legally cognizable interest in the...

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