United States v. Perez-Martinez

141 F. App'x 658

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2005
• Docket: No. 04-10481; D.C. No. CR-03-00375-HDM/RJJ
• Status: Published

Opinion

MEMORANDUM

**

Rafael Perez-Martinez appeals his sentence imposed after his guilty plea to unlawful reentry in violation of 8 U.S.C. § 1326. He contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his constitutional rights in increasing his sentence based on a fact— the prior commission of an aggravated felony — neither charged in the indictment nor admitted as part of the guilty plea. As Perez-Martinez acknowledges, this contention is foreclosed by this court’s case law. See United States v. Moreno-Hernandez, No. 03-30387, slip op. 7773, 7790 n. 8, 2005 WL 1560269 (9th Cir. July 5, 2005) (amended opinion).

Perez-Martinez was sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005), that the United States Sentencing Guidelines were effectively advisory. The record does not show how the district court would have proceeded if it had known that the Sentencing Guidelines were not mandatory. Accordingly, we remand for the district court to answer the question whether the sentence would have been materially different if it had known that the Guidelines were advisory, and for further proceedings under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See Moreno-Hernandez, slip op. at 7793-94, 2005 WL 1560269.

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 Ninth Circuit Rule 36-3.