Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Donald M. Reno, Jr., Esq., USSE--Office of the U.S. Attorney, Seattle, WA, for Plaintiff-Appellee.
Carol A. Elewski, Esq., East Olympia, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding.
Before REINHARDT, RYMER, and HAWKINS, Circuit Judges.
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.
Nahun Navarro-Mejia appeals from his sentence imposed following his guilty plea conviction for unlawful entry by eluding Immigration, in violation of 8 U.S.C. § 1325(a)(2).
Navarro-Mejia contends that the district court violated his constitutional rights in making an upward adjustment under U.S. S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense. Specifically he argues that a jury should have determined the nature of his prior conviction and its temporal relationship to the immigration proceeding. This court has continued to hold after United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 752, 160 L.Ed.2d 621 (2005), that an enhancement under 2L1.2 does not implicate the Sixth Amendment. United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005). Moreover, Navarro-Mejia acknowledged in his plea agreement that his aggravated felony conviction was premised on a state court judgment for delivery of cocaine, with a sentence imposed of fifteen months.
Because Navarro-Mejia was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially
Page 996.
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 Moreno-Hernandez at 914 (extending Ameline's limited remand procedure to cases involving non-constitutional Booker error).
REMANDED.