United States v. Nieto

135 F. App'x 91

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2005
• Docket: No. 03-10302
• Status: Published

Opinion

MEMORANDUM

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The appellant appeals his sentence for conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Because the appellant did not challenge his sentence on Sixth Amendment grounds in the district court, we review his sentence for plain error. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc). Nonetheless, we find that a remand is appropriate under Ameline, both as to the appellant’s substantive argument concerning the factual basis for the sentencing enhancement, Id. at 1085, and because 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!.]” Id. at 1084.

REMANDED.

xhiS 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.