United States v. Mejia-Castillo

146 F. App'x 928

Opinion

MEMORANDUM

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Jose Ever Mejia-Castillo appeals the 57-month sentence imposed following his guilty-plea conviction for being an alien found in the United States after removal, 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 would normally vacate the sentence and remand to the district court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (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 Booker error)

Because in this case the sentencing judge is no longer available, we vacate the sentence and remand for the district court to proceed pursuant to Ameline. See United States v. Sanders, 421 F.3d 1044, 1051-52 (9th Cir.2005).

SENTENCE VACATED and 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.