Opinion
No. 06-50411.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 19, 2007.
Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Francisco Ruiz-Silva, Fort Dix, NJ, pro se.
Siri Shetty, Esq., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CR-03-01593-LAB.
Before: O'SCANNLAIN, CLIFTON, and BEA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Francisco Ruiz-Silva appeals from the 75-month sentence imposed following his conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we remand this case for further proceedings consistent with United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
Appellant contends that he should receive resentencing because he was sentenced at a time when the United States Sentencing Guidelines were mandatory, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because the district court vacated and reentered judgment, his conviction is "not yet final" on direct review, and so he is entitled to the benefit of the Booker decision. See Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); see also United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir. 2005) (noting that a conviction is not final without an amended judgment of conviction). Accordingly, we remand this case to the district court for the limited purpose of determining whether, if it had known that the Guidelines were advisory, it would have imposed a materially difference sentence than the one it did impose. See Ameline, 409 F.3d at 1084-85.
We reject appellant's remaining contentions. See United States v. Zepeda-Martinez, 470 F.3d 909, 912 (9th Cir. 2006); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir. 2005).
REMANDED.