United States v. Beltran-Madrid

155 F. App'x 333

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2005
• Docket: No. 04-10128
• Status: Published

Opinion

MEMORANDUM

**

Javier Beltran-Madrid appeals the 57-month sentence imposed following his guilty plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Appellant contends that the district court violated his due process rights by using information the probation office acquired during the presentence investigation interview to increase his criminal history score. We reject this contention because appellant does not claim, and the record does not suggest, that his cooperation with the probation office was involuntary. See Derrick v. Peterson, 924 F.2d 813, 817 (9th Cir.1991).

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 proceed pursuant to 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, 915-16 (9th Cir.2005).

Appellant’s motion to file supplemental briefing is denied as moot.

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 9th Cir. R. 36-3.