United States v. Jimenez-Cid

143 F. App'x 843

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2005
• Docket: No. 04-50282; D.C. No. CR-03-00061-RT
• Status: Published

Opinion

MEMORANDUM

**

Joel Jimenez-Cid appeals from his 46-month sentence imposed following his guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a) & (b).

Jimenez-Cid contends that the district court erred by failing to depart to depart downward based on extraordinary childhoold abuse, reduced mental capacity, cultural assimilation and overstatement of criminal history. Jimenez-Cid was sentenced before the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

The discretionary denial of a downward departure under the pre-Booker mandatory Guidelines is unreviewable. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam). But because 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, 419 F.3d 906, 915-16 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).¹

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.

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).