UNITED STATES of America, Plaintiff-Appellee, v. Jaime Leonel DE LA ROCA-HERRERA, a/k/a Jaime L. De La Roca, Jaime Leonel De Laroca, Jaime Leonel Laroca, Jaime Delaroca and Jaimelionel Delaroca, Defendant-Appellant, 139 F. App'x 834

MEMORANDUM De La Roca-Herrera argues that the district court violated his Sixth Amendment right to confrontation by allowing hearsay evidence contained in the warrant of deportation without a showing of unavailability or a prior opportunity for cross-examination. This issue has been resolved in United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir.2005), in which the defendant’s argument was rejected. Id. at 1074-76. De La Roca-Herrera argued below that he should be sentenced at the court’s discretion because Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), invalidated the sentencing guidelines. This argument was sufficient to preserve the issue for appeal. Accordingly, pursuant to United States v. Booker, — U.S.-, -, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005), we vacate the defendant’s sentence and remand for resentencing. CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING. 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.