Opinion
This panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 532.
Pamela J. Byerly, Office of the U.S. Attorney, Spokane, WA, for Plaintiff--Appellee.
Nicholas W. Marchi, Esq., Carney & Marchi, P.S., Seattle, WA, for Defendant--Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CR-03-00097-JLQ.
Before: HUG, O'SCANNLAIN and SILVERMAN, 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.
Miguel Angel Zamudio-Orozco appeals his guilty plea conviction and the sentence imposed for alien in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand.
Because Zamudio-Orozco 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). United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline' s limited remand procedure to cases involving non-constitutional error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).
We lack jurisdiction to review the district court's discretionary refusal to depart downward pursuant to U.S. S.G. § 5H1.6, and we conclude that none of the exceptions to the rule apply in this case. United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004); United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).
We deny Zamudio-Orozco's pro se motion to file a supplemental pro se brief, because he is represented by counsel.
REMANDED.