United States v. Fabian-Chavez

163 F. App'x 608

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2006
• Docket: No. 05-30000
• Status: Published

Opinion

MEMORANDUM

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Jose Guadalupe Fabian-Chavez appeals from the 46-month sentence imposed following his guilty plea conviction for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Fabian-Chavez contends that the district court erred by granting only a five-level downward departure and denying his request for additional downward departures. Fabian-Chavez was sentenced before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although a defendant may not challenge on appeal the extent of a downward departure under the pre-Booker mandatory Sentencing Guidelines, see United States v. Riggins, 40 F.3d 1055, 1058 (9th Cir.1994), 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. Accordingly, 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, 916 (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.