United States v. Acosta-Contreras

145 F. App'x 624

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2005
• Docket: No. 04-10065; D.C. No. CR-02-01950-JMR
• Status: Published

Opinion

MEMORANDUM

**

Vincent Acosta-Contreras appeals his 41-month sentence for attempted illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Acosta-Contreras has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Acosta-Contreras has filed a pro se supplemental brief and additional citations.

We have considered the pro se supplemental brief and citations, and have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the conviction. Because Acosta-Contreras was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand the sentence for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005).

Counsel’s motion to withdraw as counsel on appeal is denied.

The conviction is AFFIRMED, and the sentence is REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.