110k1181.5 Sentence, United States v. Soto

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Rene SOTO…

Court: United States Court of Appeals, Ninth Circuit

Date published: Sep 22, 2005

145 F. App'x 227 (9th Cir. 2005)

Opinion

145 Fed.Appx. 227 (9th Cir. 2005) UNITED STATES of America, Plaintiff--Appellee, v. Rene SOTO, Defendant--Appellant. No. 04-10473. United States Court of Appeals, Ninth Circuit. September 22, 2005 ^*

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3) Appeal from the United States District Court for the District of Arizona. David C. Bury, District Judge, Presiding. D.C. No. CR-03-01462-DCB.

Before: REINHARDT, RYMER, and HAWKINS, Circuit Judges.

MEMORANDUM ^**

** 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.

Rene Soto appeals his 51-month sentence imposed following a jury trial conviction for illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We remand to the sentencing court to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 2005 WL 1964483 at *8 (9th Cir. Aug.17, 2005) (extending the Ameline remand to cases involving non-constitutional Booker error). Further, because the district court did not have the benefit of this Court's decision in Penuliar v. Ashcroft, 395 F.3d 1037, 1045-46 (9th Cir.2005), we instruct the district court to consider it upon remand.

REMANDED.