United States v. Lugo Bueno

145 F. App'x 226

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2005
• Docket: No. 04-30377
• Status: Published

Opinion

MEMORANDUM

**

Victor Lugo-Bueno appeals his sentence imposed following his guilty plea to unlawfully entering the United States after having been previously deported in violation of 8 U.S.C. § 1326.

Lugo-Bueno’s Sixth Amendment challenge to his sentencing enhancement under U.S.S.G. § 2L1.2(b) remains foreclosed after United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Moreno-Hernandez, No. 03-30387, 2005 WL 1964483, at *8 n.8 (9th Cir. Aug. 17, 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 Lugo-Bueno 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 district 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 - (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 9th Cir. R. 36-3.