United States v. Cortes

142 F. App'x 980

Opinion

ORDER and MEMORANDUM

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The panel has voted to grant the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.

The petition for panel rehearing is granted, and the petition for rehearing en banc is denied.

The Memorandum Disposition filed August 13, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Walter Cortes appeals the 97-month sentence imposed following his jury trial conviction for attempted car-jacking, in violation of 18 U.S.C. § 2119. We have jurisdiction pursuant to 18 U.S.C. § 3742.

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, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 911 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

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.