United States v. Garcia-Moreno

144 F. App'x 696

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2005
• Docket: No. 03-50466
• Status: Published

Opinion

MEMORANDUM

**

Jose Franky Garcia-Moreno appeals the 33-month sentence imposed following his conviction by a jury for possession of contraband in prison in violation of 18 U.S.C. § 1791(a)(2). We have jurisdiction under 28 U.S.C. § 1291.

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 bane). See United States v. Moreno-Hernandez, 419 F.3d 906, 915 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

The motion to continue the stay of proceedings, filed November 17, 2004, is denied.

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.