United States v. Carrillo

146 F. App'x 901

Opinion

MEMORANDUM

**

Edgardo Gracia Carrillo appeals the 60-month sentence imposed after he pled guilty to unlawful re-entry following deportation, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand.

Because Gracia Carrillo 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 would normally remand to the district 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).

Because, in this case, the sentencing judge is no longer available, we vacate the sentence and remand for the district court to proceed pursuant to Ameline. See United States v. Sanders, 421 F.3d 1044, 1051-52 (9th Cir.2005).

SENTENCE VACATED and 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.