United States v. Hernandez-Aneda

146 F. App'x 875

Opinion

ORDER and MEMORANDUM

**

The Memorandum and Disposition filed on January 14, 2005 is WITHDRAWN and replaced with the following Memorandum Disposition:

Hernandez-Aneda’s Sixth Amendment challenge to his sentencing enhancement, based on a prior conviction, remains foreclosed after Booker. See United States v. Moreno-Hernandez, — F.3d -, -, No. 03-30387, 2005 WL 1560269, *8 n. 8 (9th Cir. July 5, 2005) (explaining that a district judge’s enhancing a sentence based on the fact of a prior conviction does not raise any Sixth Amendment problems).

Because Hernandez-Aneda 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 United States v. Moreno-Hernandez, id., at -, 2005 WL 1291977 at *9 (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

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.