United States v. Ortiz-Hernandez

143 F. App'x 820

Opinion

ORDER and MEMORANDUM

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The petition for panel rehearing is GRANTED. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35. The petition for rehearing en banc is denied.

The Memorandum Disposition filed January 14, 2005, is WITHDRAWN and replaced with the following Memorandum Disposition:

Jose Luis Ortiz-Hernandez appeals his guilty plea conviction and 46-month sentence imposed for illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b)(2).

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

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 the guidelines are now purely advisory, see United States v. Booker, - U.S. -, ---, 125 S.Ct. 738, 764-67,160 L.Ed.2d 621 (2005), we remand to the district court for the limited purpose of determining if Ortiz-Hernandez should receive a different sentence under the advisory Guidelines system. See United States v. Ameline, 409 F.3d 1073, (9th Cir.2005) (en banc); see also United States v. Hermoso-Garcia, 413 F.3d 1085, 1089-90 (9th Cir.2005).

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.