United States v. Gonzalez-Mendoza

144 F. App'x 664

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2005
• Docket: No. 04-50164
• Status: Published

Opinion

ORDER and MEMORANDUM

**

The petition for panel rehearing is granted. The Memorandum Disposition filed December 10, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Celestino Gonzalez-Mendoza appeals his conviction and 57-month sentence imposed following his guilty plea to illegal reentry following deportation, 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 Gonzalez-Mendoza has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Gonzalez-Mendoza 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 the Sentencing Guidelines are now advisory, we remand so the district court can determine if Gonzalez-Mendoza should receive a different sentence under the advisory Guidelines system. See United States v. Booker, — U.S. -,---, 125 S.Ct. 738, 764-67, 160 L.Ed.2d 621 (2005); United States v. Hermoso-Garcia, 413 F.3d 1085, 1089-90 (9th Cir.2005).

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

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 Ninth Circuit Rule 36-3.