United States v. Orejel-Ramirez

143 F. App'x 69

Opinion

MEMORANDUM**

Defendant Jose A. Orejel-Ramirez appeals the sentence he received after pleading guilty to importation of, and possession with intent to distribute, five kilograms or more of cocaine. We have jurisdiction under 18 U.S.C. § 3742. We affirm as to those grounds raised on appeal but remand for consideration of United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

Orejel-Ramirez challenges his sentence on two grounds, neither of which are persuasive. First, the district court did not clearly err in refusing to designate Orejel-Ramirez as a “minimal” participant under the Federal Sentencing Guidelines, § 3B1.2. See United States v. Rosales-Rodriguez, 289 F.3d 1106, 1112 (9th Cir.2002). Orejel-Ramirez admitted to being paid to transport a substantial amount of drugs into the United States. See id.

Second, the determination of drug quantity in Orejel-Ramirez’s possession did not impermissibly result in an enhanced sentence based on facts not proven to a jury or admitted by the defendant. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 748-49, 160 L.Ed.2d 621 (2005). The district court’s sentence relied on the fact that both crimes for which Orejel-Ramirez pled guilty had as an element the possession or importation of five or more kilograms of cocaine. See 21 U.S.C. §§ 952(a) and 960(b)(l)(b)(B)(ii), and 841(b)(l)(ii)(II); see also United States v. Beaudion, 416 F.3d 965, 970 (9th Cir.2005).

A limited remand is nonetheless appropriate pursuant to Ameline. We cannot ascertain from the record whether the sentence “imposed [by the district court] would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074; see United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir.2005), as amended — F.3d -, -, 2005 WL 1560269, at *2 (9th Cir. July 5, 2005) (ordering limited remand to unpreserved non-constitutional Booker errors). On remand, the district court shall give Orejel-Ramirez the opportunity to indicate if he wishes to pursue resentencing. See Ameline, 409 F.3d at 1084.

AFFIRMED IN PART; REMANDED IN PART.

Footnotes

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This 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.