UNITED STATES OF AMERICA, v. Robinson GUZMAN, Appellant, 125 F. App'x 456

OPINION OF THE COURT PER CURIAM. After pleading guilty pursuant to a plea agreement, the defendant in this case was sentenced under the Sentencing Guidelines. The sentencing occurred prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defense counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has moved to withdraw.

Our review of the record has disclosed only one non-frivolous issue that could be raised on appeal, namely, that the District Court erred in sentencing the defendant under the erroneous belief that the Sentencing Guidelines were mandatory rather than advisory. Moreover, having determined that issues with respect to Booker are best determined by the District Court in the first instance, we vacate the sentence and remand for resentencing in accordance with that opinion.