UNITED STATES v. ESTABILIO (2021)

MEMORANDUM **

Kelaukila Estabilio appeals from the district court's judgment and challenges the 60-month sentence imposed following her guilty-plea conviction for wire fraud in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the judgment and remand for resentencing.

Estabilio contends that her above-Guidelines sentence is unconstitutional and unreasonable because the district court relied on her race to justify the upward variance. At sentencing, the court referred to Estabilio as a “Hawaiian” who stole from “other Hawaiians.” It is unclear from the record whether this was an impermissible reference to Estabilio's race. Because even the appearance that race was considered at sentencing justifies remand, we vacate Estabilio's sentence and remand for resentencing. See United States v. Borrero-Isaza, 887 F.2d 1349, 1355 (9th Cir. 1989). In light of this disposition, we do not reach Estabilio's other challenges to her sentence.

Estabilio also requests that we remand for resentencing before a different district judge. While we have no doubts as to the district judge's impartiality or ability to assess this case fairly, we grant Estabilio's request to preserve “the appearance of justice.” See United States v. Quach, 302 F.3d 1096, 1103-04 (9th Cir. 2002) (remanding to a different district judge for resentencing to preserve the appearance of justice and clarifying that no criticism of the district judge was intended). We instruct the Clerk of the District Court for the District of Hawaii to reassign this case to a different district court judge upon remand.

VACATED and REMANDED.