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NOT FOR PUBLICATION.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)
Nancy B. Spiegel, Esq., Ronald L. Cheng, Esq., Christopher Calarco, Esq., Los Angeles, CA, for Plaintiff-Appellee.
Jonathan D. Libby, Deputy FPD, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Edward Rafeedie, District Judge, Presiding. D.C. No. CR-02-00783-ER.
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 9th Cir. R. 36-3.
Sung U. Paek appeals the 46 months of imprisonment imposed upon resentencing following his guilty plea conviction for being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.
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, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 915-16 (9th Cir.2005) (extending Ameline' s limited remand procedure to cases involving non-constitutional Booker error).
REMANDED.