United States v. Juan-Sebastian

162 F. App'x 786

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2006
• Docket: No. 04-30413
• Status: Published

Opinion

MEMORANDUM

**

Demetrio Juan-Sebastian appeals from the 39-month sentence imposed following his guilty-plea conviction for unlawful reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). We have jurisdiction under 28 U.S.C. § 1291.

Because appellant 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, 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)); see also United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting contention that prior convictions must be proved to a jury if not admitted by the defendant and reaffirming that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has not been overruled).

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.