United States v. Barbosa-Flores

143 F. App'x 826

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2005
• Docket: No. 04-50443
• Status: Published

Opinion

MEMORANDUM

**

Martin Barbosa-Flores appeals from a sentence imposed following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2).

Barbosa-Flores, who filed his brief with this court before the Supreme Court issued its decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), argues that the Sentencing Guidelines are unconstitutional and that the enhancement of his sentence based on a prior conviction must therefore be invalidated. That argument, however, has since been overtaken by Booker. Barbosa-Flores’ contention that his enhancement based on a prior conviction is unconstitutional is foreclosed by this court’s case law. See United States v. Moreno-Hernandez, 419 F.3d 906, 15, n. 8 (9th Cir.2005) (explaining that a district judge’s enhancement of a sentence, based on the fact of a prior conviction under U.S.S.G. § 2L1.2, does not raise any Sixth Amendment problems).

Because Barbosa-Flores 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 to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See Moreno-Hernandez, *8 (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

REMANDED.¹

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.

1 . On remand the district court should also correct the judgment to exclude the reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000).