United States v. Cruz-Ayon

218 F. App'x 619

Opinion

MEMORANDUM

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Roberto Cruz-Ayon appeals from the 46-month sentence imposed following remand under United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate Cruz-Ayon’s sentence and remand to the district court for resentencing.

Defendants who, like Cruz-Ayon, preserved a constitutional objection to mandatory Guidelines sentencing are entitled to full resentencing rather than a limited Ameline remand, unless the government can show error was harmless. United States v. Beng-Salazar, 452 F.3d 1088, 1097 (9th Cir.2006). Because we cannot say that the error was harmless beyond a reasonable doubt, we vacate Cruz-Ayon’s sentence and remand for resentencing. See id. We express no opinion as to the merits of the district court’s prior sentencing decisions.

The government’s motion to strike Cruz-Ayon’s reply brief is hereby denied.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.