United States v. Gomez-Valdovinos

196 F. App'x 482

Opinion

MEMORANDUM

**

Gerardo Gomez-Valdovinos appeals from the 57-month sentence imposed after his guilty-plea conviction for being an illegal alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Gomez-Valdovinos’ contention that the district court’s condition of supervised release requiring him to report to his probation officer within 72 hours of reentry into the United States violates the Fifth Amendment is foreclosed by this court’s opinion in United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir.2006).

Because Gomez-Valdovinos 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 district 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 under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we also remand the case to the district court with instructions that it delete from the judgment the reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

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.