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affirming district court's dismissal of "claims that defendants acted with deliberate indifference by misdiagnosing his ruptured disc"
Summary of this case from Lozano v. Cnty. of Santa ClaraOpinion
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NOT FOR PUBLICATION.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)
Mark R. Rehe, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Zandra L. Lopez, Federal Defenders of San Diego, Inc., 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. D.C. No. CR-04-01712-NAJ.
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 9th Cir. R. 36-3.
Roberto Rodriguez-Mancinas appeals from the 21-month sentence imposed following his guilty-plea conviction for unlawful reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 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 (9th Cir.2005) (en banc). See 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)).
Appellant's other contentions are foreclosed by this circuit's case law. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1228 (9th Cir.2005) (rejecting contention that prior convictions must be proved to a jury if not admitted by the defendant and reaffirming that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has not been overruled); United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001) (rejecting contention that the fact of the temporal relationship of the removal to the prior conviction is beyond the scope of Supreme Court's recidivism exception).
REMANDED.
The mandate shall issue forthwith.