United States v. No Runner

163 F. App'x 566

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2006
• Docket: No. 04-30227
• Status: Published

Opinion

MEMORANDUM

**

Devina Marie No Runner appeals from her guilty-plea conviction and sentence imposed for second degree murder, in violation of 18 U.S.C. §§ 2, 1111, 1153.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for No Runner has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. No Runner has not filed a pro se supplemental brief.

We have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the conviction. 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 remand to the sentencing 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, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional error).

Counsel’s motion to withdraw as counsel on appeal is denied.

The conviction is AFFIRMED, and the sentence is 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.