United States v. Barraza-Ruiz

145 F. App'x 620

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2005
• Docket: Nos. 04-10156, 04-10157; D.C. Nos. CR-02-01876-JMR, CR-00-00207-3-JMR
• Status: Published

Opinion

MEMORANDUM

**

In these consolidated appeals, Jose Barraza-Ruiz appeals his 77-month sentence imposed after pleading guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and the revocation of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291.

As to appellant’s supervised release revocation in case number 04-10156, we reject appellant’s contention that the district court should have sentenced him to concurrent sentences. See 18 U.S.C. § 3584. Accordingly, we affirm.

Regarding appellant’s § 1326 sentence in case number 04-10157, we reject appellant’s contentions. However, because appellant 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 United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

Case number 04-10156 is AFFIRMED.

Case number 04-10157 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 9 th Cir. R. 36-3.