United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1025

___________

United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Cinthia Wysong, also known as *

Cynthia Wysong, * 

*

Appellee. * 

___________

Submitted: October 17, 2007

Filed: February 5, 2008

___________

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Cinthia Wysong pled guilty to one count of possession of pseudoephedrine,

knowing or having reasonable cause to believe that the chemical would be used to

manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). At

sentencing, the district court varied downward from the advisory guidelines range of

46-57 months to a term of 24 months’ imprisonment, and then suspended the 24-

month sentence. Because federal courts are not authorized by statute to suspend

sentences, we reverse and remand for resentencing. 
-2-

Wysong was charged with three counts of possession of pseudoephedrine or

ephedrine and one count of possession of methamphetamine with the intent to

distribute, in violation of 21 U.S.C. § 841(c)(2) and (a)(1). Wysong agreed to plead

guilty to one count of possession of pseudoephedrine, and the government agreed to

move to dismiss the remaining counts. The United States Probation Office

recommended an advisory guidelines range of 51 to 63 months’ imprisonment. The

district court found that Wysong’s criminal history category substantially overrepresented her criminal history, and departed downward under § 4A1.3 of the

advisory guidelines to a term of 46 to 57 months’ imprisonment.

The district court further determined that a variance from the advisory guideline

range was warranted based on expert testimony about battered person’s syndrome and

its effect on Wysong. At the sentencing hearing, the court announced that Wysong

was sentenced to 24 months’ imprisonment, but then “suspend[ed] the execution” of

that sentence, and placed her on three years’ probation. The court stated that if

Wysong violated the terms of her probation, then she would have to serve the 24

months in prison. The written judgment reflects that Wysong was sentenced to

probation for a term of three years, and that as “a special condition of supervision,”

Wysong was “sentenced to 24 months in custody suspended execution of sentence and

placed on three years probation.” Like the oral pronouncement, the judgment states

that “if probation is revoked[,] the defendant will have to serve the 24 month

sentence.”

In United States v. Ross, 487 F.3d 1120, 1124 (8th Cir. 2007), we held that a

district court erred in imposing a suspended sentence in the absence of statutory

authority to do so. We adopted the conclusion of the Sentencing Commission that

“the statutory authority to ‘suspend’ the imposition or execution of a sentence in order

to impose a term of probation was abolished upon implementation of the sentencing

guidelines.” USSG ch. 7, pt. A, (2)(a). Although the sentencing guidelines have been

declared effectively advisory as a remedy for Sixth Amendment violations caused by
-3-

the mandatory guidelines, see United States v. Booker, 543 U.S. 220 (2005), that

remedial action did not restore a district court’s authority to “suspend” terms of

imprisonment.

Wysong concedes that a suspended sentence is not permitted under federal law,

but argues that the district court intended to sentence her to a simple term of three

years’ probation, and that this sentence should be affirmed. We disagree. The district

court’s pronouncement of sentence clearly reflects that a sentence of imprisonment

was suspended: “I’m sentencing you to 24 months, but I’m going to suspend the

execution of that sentence, [and] place you on three years probation.” (S. Tr. 25). The

written judgment characterized the sentence as a term of probation, but it continued

to incorporate a suspended sentence of 24 months’ imprisonment as a “condition of

supervision.” The imposition of a suspended sentence was error, and we cannot say

that it was harmless. The court emphasized to Wysong that the “suspended” term of

imprisonment would be “hanging over [her] head,” (id.), and it is not sufficiently clear

that the court would have imposed a term of probation if it had recognized that the

deterrent effect inherent in a suspended sentence was not available. See Ross, 487

F.3d at 1124. Accordingly, we conclude that the sentence must be vacated, and the

case remanded for resentencing.

______________________________