1 The Honorable A. Wallace Tashima, United States Circuit Judge for the Ninth Circuit, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1217

___________ United States of America, *
* Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Kelly Foster, *
* Appellee. *

__________ Submitted: November 16, 2007 Filed: January 31, 2008

___________ Before RILEY, TASHIMA, 1 and SMITH, Circuit Judges.

___________ RILEY, Circuit Judge.
Under a plea agreement, Kelly Foster (Foster) pled guilty to knowingly and intentionally possessing pseudoephedrine, knowing the pseudoephedrine would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). The district court sentenced Foster to 60 months’ imprisonment, but immediately suspended the sentence and placed Foster on five years’ probation. The government appeals the sentence. For the reasons stat ed below, we vacate Fo ster’s sentence and remand the case to the district court for resentencing.-2- I. BACKGROUND Neither party challenges the facts leadi ng to Foster’s guilty plea, and although they take issue as to whether Foster’s cr iminal history category should be either I or II, the real disputed issues are whether Foster’s sentence is legal and reasonable. Thus, we briefly state the relevant facts.

Foster pled guilty to one count of knowingly and inte ntionally possessing pseudoephedrine knowing it would be used to manufacture methamphetamine. The presentence investigation report indicated Fo ster’s total offense level was 27 with a criminal history category II. Foster’s advi sory Guidelines range was 78 to 97 months’ imprisonment.

As part of his plea agreement, Foster reserved the right “to request a departure [to criminal history category I] based on over-represented criminal history.” At sentencing, Foster requested a downward departure of one level on his criminal history category. The government objected to Foster’s request. Indicating Foster’s criminal history category was overstated, the district court overruled the government’s objection and sentenced Foster to 60 months ’ imprisonment. The district court then suspended Foster’s sentence and placed him on probation for five years. The government appeals, arguing Foster’s sentence is illegal and unreasonable.

II. DISCUSSION We review de novo the district court’s interpretation and application of the Guidelines, United States v. Peterson , 455 F.3d 834, 837 (8th Cir. 2006), as well as any other issues of law. United States v. Bahena , 223 F.3d 797, 804 (8th Cir. 2000). However, we review for clear error the district court’ s factual findings. Peterson , 455 F.3d at 837.

“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range . . . . [T]he Guidelines should be the-3- starting point and the initial benc hmark.” Gall v. United States , __ U.S. __, 2007 WL 4292116 at *7 (2007). “[A]fter giving both parties an opportunity to argue for whatever sentence they deem appropriate, th e district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume th at the Guidelines range is reasonable. . . . He must make an individualized assessm ent based on the facts presented.” Id. (footnote omitted).

“If [the district judge] decides that anoutside-Guidelines sentence is warranted, he must consider the extent of the devi ation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. “[A] major departure should be supported by a more si gnificant justification than a minor one.” Id.

On appeal, “[r]egardless of whether th e sentence imposed is inside or outside the Guidelines range, the appe llate court must review th e sentence under an abuse-ofdiscretion standard.” Id. “[The appellate court] must firs t ensure that the district court committed no significant procedural error, su ch as failing to calculate (or improperly calculating) the Guidelines range, treati ng the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. “Assuming that the district court’s sentencing decision is procedurally sound, th e appellate court should then consider the substantive reasonableness of the senten ce imposed under an abuse-of-discretion standard.” Id.

With these precepts in mind, we find the district court’s imposition of a suspended sentence constitutes anillegal sentence. We recently declared it is error for the district court to suspend a “sentence in the absence of the statutory authority to do so.” United States v. Ross , 487 F.3d 1120, 1124 (8th Cir. 2007). In Ross , the district-4- court sentenced the defendant to a term of imprisonment and then suspended part of that sentence. Id. In remanding Ross for resentencing, we noted the authority to suspend federal sentences ha s been abolished. Id. Because the district court was not authorized to suspend Foster’s sentence, the district court’s sentence is illegal.

Foster acknowledges the district court erre d, but contends the sentence is legal because the district court’s written j udgment does not mention his sentence was suspended. We cannot disregard the districtcourt’s legal error because, at sentencing, the district judge expressly stated:

The court is sentencing you to 60 months based upon your overstated criminal history . . . . The court is going to suspend the imposition of this five-year sentence and place you on five years probation.
This sentence, as acknowledged by both pa rties, violates 18 U.S.C. § 3561(a)(3), which provides “[a] defendant who has been found guilty of an offense may be sentenced to a term of probation unless . . . (3) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.” It is true that the district court’s subsequent written judgment provides that “[t]he defendant is hereby sentenced to probation for a term of 5 years.” Even assuming, as defendant does, that this w ould be a “legal” sentence, it cannot control over the oral pronouncement of sentence. “Where an oral sentence and the written judgment conflict, the oral sentence controls.” United States v. Glass , 720 F.2d 21, 22 n.2 (8th Cir. 1983) (citing Johnson v. Mabry , 602 F.2d 167, 170 (8th Cir. 1979));

seealso United States v. Tramp , 30 F.3d 1035, 1037 (8th Cir. 1994) (“The oral pronouncement by the sentencing court is the judgment of the court.”). Thus, the district court’s later written judgment doe s not remedy its plainly illegal sentence.

Because Foster needs to be resentenced, we will not review the reasonableness of his sentence at this time. We do empha size, however, that “[a]fter settling on the appropriate sentence, [a district judge] mu st adequately explain the chosen sentence-5- to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall , __ U.S. __, 2007 WL 4292116 at *7. The district judge “must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. at *6.

III. CONCLUSION Based on the foregoing, we vacate Foster’s sentence and remand for resentencing consistent with this opinion.

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