United States v. Castro

143 F. App'x 764

Opinion

MEMORANDUM

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Jose Luis Castro appeals the sentence imposed following his guilty plea to conspiracy, possession with intent to distribute cocaine and cocaine base, and maintaining a place for manufacturing or distributing a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(l(B)(ii), (b)(l)(A)(iii) and 856(a)(1), and his bench trial conviction for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

Castro contends for the first time on appeal that the district court violated his Sixth Amendment rights when it increased his statutory maximum sentence based on facts not proved beyond a reasonable doubt to a jury or admitted by Castro. Because the defendant 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).

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 Ninth Circuit Rule 36-3.