United States v. Gallo-Chavez

150 F. App'x 721

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2005
• Docket: No. 03-50528; D.C. No. CR-98-00508-LGB-04
• Status: Published

Opinion

MEMORANDUM

**

Matías Gallo-Chavez appeals from his guilty-plea conviction and sentence for conspiracy to launder monetary instruments, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1), 2.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Gallo-Chavez has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Gallo-Chavez 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 would 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’ s limited remand procedure to cases involving non-constitutional error).

Because the sentencing judge is no longer available in this case, however, we vacate the sentence and remand for a full resentencing hearing. See United States v. Sanders, 421 F.3d 1044, 1051-52 (9th Cir.2005).

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

CONVICTION AFFIRMED, SENTENCE VACATED and 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 Ninth Circuit Rule 36-3.