Opinion
Argued and Submitted February 8, 2005.
As Amended June 23, 2005.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 295.
Steve Miller, AUSA, USSD--Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
William Braniff, Law Offices of Wiliam Braniff, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding.
Before HUG, FERGUSON, 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.
Roman Alarid pled guilty to conspiracy to distribute methamphetamine and was sentenced to 130 months in prison. On appeal, he challenges the district court's imposition of a two-level enhancement for firearms possession under U.S. S.G. § 2D1.1(b)(1) as both an improper application of the sentencing guidelines and a violation of his Sixth Amendment right to jury determination of the facts underlying the enhancement.
The government urged that this appeal be dismissed, citing a waiver of appellate rights contained in Alarid's plea agreement. On de novo review, United States v. Smith, 389 F.3d 944, 953 (9th Cir.2004), however, we find the waiver unenforceable. Although the district court mentioned the possibility of such a waiver during the plea colloquy, it failed to discuss the specific terms of the waiver and ensure Alarid's understanding as required by Fed.R.Crim.P. 11(b)(1)(N). This omission was plain error. See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004). Because the waiver was not knowingly and voluntarily made, see id. at 796, it cannot be enforced.
Alarid's 130-month sentence was within the range that could have been imposed even without the firearms enhancement challenged on appeal. However, on the limited record before us, we cannot reliably determine whether the district judge would have imposed a materially different sentence under advisory guidelines. See United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). Therefore, we vacate the sentence and remand so that the district court may decide whether to impose a different sentence. See id.
SENTENCE VACATED and REMANDED. The mandate shall issue forthwith.