United States v. Gasga-Amaya

143 F. App'x 907

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2005
• Docket: No. 04-50489
• Status: Published

Opinion

MEMORANDUM

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Leo Nicolas Gasga-Amaya appeals from a 27-month sentence imposed following his guilty plea to being a deported alien in violation of 8 U.S.C. § 1326.

Gasga-Amaya contends that his 41-month sentence exceeded the statutory maximum allowed under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because he did not admit, and the government did not prove to a jury, his prior aggravated felony conviction, which the court used to increase his term pursuant to 8 U.S.C. § 1326(b)(2) and the United States Sentencing Guidelines. This contention is foreclosed by this court’s case law. See United States v. Moreno-Hernandez, 419 F.3d 906, 915 n. 8 (9th Cir.2005) (explaining that a district judge’s enhancement of a sentence, based on the fact of a prior conviction under U.S.S.G. § 2L1.2, does not raise any Sixth Amendment problems).

Because Gasga-Amaya 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 Moreno Hermandez at 916 (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

REMANDED.¹

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.

1 . On remand the district court should also correct the judgment to exclude the reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000).