United States v. Castillo

158 F. App'x 881

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2005
• Docket: No. 04-30375
• Status: Published

Opinion

MEMORANDUM

**

David Del Castillo appeals the 64-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Appellant argues that the district court committed Sixth Amendment error by considering the fact of a prior conviction which was neither proved to a jury beyond a reasonable doubt nor admitted by him. This contention is foreclosed by United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (“Booker bars the district court from considering only those facts not found by the jury other than the fact of prior conviction”) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005)).

Because appellant was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether any error in the imposition of the sentence under the then-mandatory Sentencing Guidelines was harmless, 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, 419 F.3d at 916.

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.