United States v. Ortiz-Franco

142 F. App'x 979

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2005
• Docket: No. 03-10611; D.C. No. CR-02-01285-CKJ
• Status: Published

Opinion

ORDER and MEMORANDUM

**

The Memorandum Disposition filed July 20, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Miguel Ortiz-Franco appeals his guilty-plea conviction and 57-month sentence imposed for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a).

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Ortiz-Franco has filed a brief stating that there are no grounds for relief, and a motion to withdraw as counsel of record. Ortiz-Franco has filed a pro se supplemental opening brief, and the government has filed a supplemental answering brief.

We have conducted an independent review of the briefs and record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the conviction.

We remand the sentence. The Sentencing Guidelines are no longer mandatory and we cannot determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory. See United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). On remand, therefore, the district court should consider in its discretion appellant’s sentence in light of Ameline.

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.