United States v. Nava-Correa

143 F. App'x 878

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2005
• Docket: No. 04-50299
• Status: Published

Opinion

MEMORANDUM

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Homero Nava-Correa appeals the 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(a) and (b)(2).

Nava-Correa contends that the district court erred in applying the Sentencing Guidelines as mandatory when imposing his sentence. Because Nava-Correa 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 United States v. Moreno-Hernandez, 419 F.3d 906, 915 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

On remand we also direct the district court to 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).

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.