United States v. Ungaro

140 F. App'x 709

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2005
• Docket: No. 04-50523; D.C. No. CR-04-00685-IEG
• Status: Published

Opinion

MEMORANDUM

**

Jennifer Charlotte Ungaro appeals the sentence of one year and one day, imposed following her guilty-plea conviction for bringing in illegal aliens without presentation in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2.

Ungaro contends that the district court sentenced her in violation of the Fifth and Sixth Amendments by imposing a six-level enhancement for reckless creation of a substantial risk of death or bodily injury. This argument is unavailing because she admitted to the facts underlying the enhancement in her plea agreement and at the change of plea hearing, and she stipulated as to the applicability of the enhancement in the plea agreement. Cf. United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir.2005) (en banc) (stating that a constitutional infirmity arises when, under a mandatory Guidelines scheme, the judge considers facts beyond those found by a jury or admitted by the defendant).

Ungaro’s sentence was imposed at a time when the Sentencing Guidelines were mandatory. 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 so the district court can determine if Ungaro should receive a different sentence under the advisory Guidelines system. See United States v. Hermoso-Garcia, No. 04-30196, 2005 WL 1579507 at *3 (9th Cir. July 7, 2005).

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.