United States v. Leon

143 F. App'x 841

Opinion

MEMORANDUM

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Norberto Leon appeals from his sentence imposed following his guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1826(a) & (b)(2).

Leon contends that the district court violated his constitutional rights in making an upward adjustment under U.S.S.G. § 2L1.2(b)(l)(A)(ii) for a crime of violence. This contention is foreclosed by this court’s case law. See United States v. Moreno-Hernandez, 419 F.3d 906, 914-15 n. 8 (9th Cir.2005) (explaining that a district judge’s enhancement of a sentence, based on the fact of a prior conviction under U.S.S.G. § 2L1.2, does not raise any Sixth Amendment problems).

Because Leon 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 Moreno-Hernandez at 915-16 (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).