United States v. Guzman-Sandoval

144 F. App'x 655

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2005
• Docket: No. 04-10306
• Status: Published

Opinion

MEMORANDUM

**

Rene Guzman-Sandoval appeals the sentence imposed after his guilty plea to unlawful reentry by a deported, removed, and/or excluded alien, in violation of 8 U.S.C. § 1326(a). He contends that in increasing his sentence under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(l)(A) on the ground that he previously was deported after a conviction for an aggravated felony, the district court should have required proof beyond a reasonable doubt of the nature of the prior conviction and its temporal relationship to the immigration proceeding. This contention lacks merit because these matters are fundamental elements of the fact of the prior conviction, which may be found by the judge alone. See United States v. Moreno-Hernandez, 2005 WL 1560269, No. 03-30387, slip op. 7773, 7790 n. 8 (9th Cir. July 5, 2005) (amended opinion); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (order denying rehearing and rehearing en banc).

Guzman-Sandoval was sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -,-, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005), that the Sentencing Guidelines were effectively advisory. The record does not show how the district court would have proceeded if it had known that the Guidelines were not mandatory. Accordingly, we remand for the district court to answer the question whether the sentence would have been materially different if it had known that the Guidelines were advisory, and for further proceedings under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See Moreno-Hernandez, 2005 WL 1560269, slip op. at 7793-94.

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.