Opinion
The 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NOT FOR PUBLICATION.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)
Robert A. Bork, Esq., USLV--Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Jason F. Carr, Esq., FPDNV--Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Robert C. Jones, District Judge, Presiding. D.C. No. CR-04-00195-RCJ/RJJ.
Before: HUG, O'SCANNLAIN, and SILVERMAN, Circuit Judges.
Page 590.
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.
Nomar Virgen-Ruelas appeals the 57-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Virgen-Ruelas contends that the district court committed Sixth Amendment error by considering the fact of a prior conviction which was neither proved to a jury beyond a reasonable doubt nor admitted by him. This contention is foreclosed by United States v. Hernandez-Hernandez, No. 02-30429 (9th Cir.2005) and United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005) ("Booker bars the district court from considering only those facts not found by the jury other than the fact of prior conviction") (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005)). Virgen-Ruelas acknowledges that his contention is foreclosed by Ninth Circuit precedent, but states in his brief that he seeks to preserve this issue in order to facilitate potential post-conviction litigation.
Because Virgen-Ruelas was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether any error in the imposition of the sentence under the then-mandatory Sentencing Guidelines was harmless, 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, 419 F.3d at 916.
REMANDED.