United States v. Zapata-Rodriguez

146 F. App'x 170

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2005
• Docket: No. 04-10021
• Status: Published

Opinion

ORDER and MEMORANDUM

**

Appellant’s pro se “Motion to Amend Under Blakely, Booker and Fanfan” is ordered filed and granted.

The Memorandum Disposition filed December 10, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Elíseo Zapata-Rodriguez appeals his guilty-plea conviction and 94-month sentence for illegal re-entry after 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 Zapata-Rodriguez has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Zapata-Rodriguez has not filed a pro se supplemental brief.

Our 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), 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: Elíseo Zapata Rodriguez, Reg. No. 61719-208, Cl Cibola County, Correctional Institution, P.O. Box 3540, Milan, NM, 87021, and on counsel for appellant.

Counsel’s motion to withdraw 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 Ninth Circuit Rule 36-3.