United States v. Monguia

180 F. App'x 726

Opinion

MEMORANDUM

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Jose Monguia appeals his 70-month sentence imposed following his guilty plea to being found in the United States after illegal re-entry, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand.

Monguia contends that the district court violated his Sixth Amendment rights by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based on a prior conviction that was neither proved to a jury nor admitted during the plea colloquy. This contention is foreclosed. See United States v. Weiland, 420 F.3d 1062, 1079 & n. 16 (9th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006).

As to Monguia’s contention that the case should be remanded for re-sentencing, because Monguia was sentenced under the then-mandatory U.S. 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 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).

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.