## 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 c ount 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 dow nward from the advisory guidelines range of 46-57 months to a term of 24 months’ imprisonment, and then suspended the 24- month sentence. Because fe deral courts are not authorized by statute to suspend sentences, we reverse and remand for resentencing.-2- Wysong was charged with three count s of possession of pseudoephedrine or ephedrine and one count of possession of methamphetami ne 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 pse udoephedrine, 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 th at 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 cond ition of supervision,” Wysong was “sentenced to 24 months in custody suspended execution of sentence and placed on three years probation.” Like th e oral pronouncement, the judgment states that “if probation is revoked[,] the defe ndant 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 suspe nded sentence in the absence of statutory authority to do so. We adopted the c onclusion 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 adviso ry 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 districtcourt’s authority to “suspend” terms of imprisonment.

Wysong concedes that a suspended sent ence 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 shoul d be affirmed. We disagree. The district court’s pronouncement of sentence clearly re flects 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 suspende d sentence was error, and we cannot say that it was harmless. The court emphasizedto Wysong that the “suspended” term of imprisonment would be “ha nging 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 i nherent in a suspended sent ence was not available. See Ross , 487 F.3d at 1124. Accordingly, we conclude th at the sentence must be vacated, and the case remanded for resentencing.

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