United States v. Perez

142 F. App'x 310

Opinion

ORDER and MEMORANDUM

**

The Memorandum Disposition filed September 23, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Victor Medina Perez appeals his guilty-plea conviction and 70-month sentence for being an illegal alien found in the United States following 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 Medina Perez has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Medina Perez has not filed a pro se supplemental brief.

Our independent review of the record pursuant to Benson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no grounds for relief. 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, — F.3d-,-, No. 03-30387, 2005 WL 1560269 at *9 (9th Cir. July 5, 2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error).

The Clerk shall serve this order on appellant individually at Victor Medina Perez, Reg. No. 26081-112, USP Lompoc, U.S. Penitentiary, 3901 Klein Blvd., Lompoc, CA, 93436, and on counsel for appellant.

Counsel’s motion to withdraw is DENIED.

The conviction is AFFIRMED, and the sentence is REMANDED.¹

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.

1 . Counsel’s motion for leave to withdraw the Anders brief and file new opening brief is denied as moot.