United States v. Espana

155 F. App'x 265

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2005
• Docket: No. 04-50387
• Status: Published

Opinion

MEMORANDUM

**

Juan Donaldo Perdomo España appeals from the district court’s judgment imposing a 77-month sentence following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1826.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for España has filed a brief stating that she finds no grounds for relief, along with a motion to withdraw as counsel of record.¹ No pro se supplemental brief or answering brief has been filed.

We have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). 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 (9th Cir.2005) (en banc). See United States v. Moreno-Hemandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional error under United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). If appellant does not want to pursue resentencing, appellant should promptly notify the district court judge on remand. See Ameline, 409 F.3d at 1084.

Counsel’s motion to withdraw as counsel is denied.

The mandate shall issue forthwith.

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.

1 . Counsel's February 14, 2005 request to withdraw her Anders motion is denied.