United States v. Sevilla-Rodriguez

228 F. App'x 789

Opinion

MEMORANDUM

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German Sevilla-Rodriguez appeals from the 57-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand.

Sevilla-Rodriguez was sentenced in 2004 under the mandatory Sentencing Guidelines, before the Supreme Court rendered the Guidelines advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Sixth Amendment challenges to his sentence that Sevilla-Rodriguez raised before the district court were sufficient to preserve his claim that he is entitled to resentencing under the advisory Guidelines regime. See United States v. Beng-Salazar, 452 F.3d 1088, 1097 (9th Cir.2006). We vacate the sentence and remand for resentencing. See id.

Sevilla-Rodriguez’s challenges to the constitutionality of 8 U.S.C. § 1326(b) and the continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), are foreclosed. See Beng-Salazar, 452 F.3d at 1097.

Because we vacate and remand for re-sentencing, we do not reach Sevilla-Rodriguez’s remaining contentions.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.