United States v. Flores-Cernas

155 F. App'x 338

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2005
• Docket: No. 03-10329
• Status: Published

Opinion

MEMORANDUM

**

Miguel Flores-Cernas appeals from his guilty-plea conviction and 73-month sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Flores-Cernas has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Flores-Cernas has not filed a pro se supplemental brief.

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). We affirm the conviction. 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-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’ & limited remand procedure to cases involving non-constitutional error).

Counsel’s motion to withdraw as counsel on appeal is denied.¹

The conviction is AFFIRMED, and the sentence is 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 . All other pending motions are denied.