UNITED STATES of America, Plaintiff-Appellee, v. Shayne M. CRISOLO, Defendant-Appellant, 141 F. App'x 653

MEMORANDUM Shayne Crisolo appeals his sentence imposed after his guilty plea to aiding and abetting the attempted possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He contends that the district court erred in refusing to depart downward from the United States Sentencing Guidelines for sentencing disparity. Crisolo was sentenced before the Supreme Court held that the Sentencing Guidelines were effectively advisory. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005).

The discretionary denial of a downward departure under the pre-Booker mandatory Guidelines is unreviewable. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam). Nonetheless, the record does not show how the district court would have proceeded had it known that the Guidelines were not mandatory. Accordingly, we remand for the district court to answer the question whether the sentence would have been materially different if it had known that the Guidelines were advisory and for further proceedings under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc).

See United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir.2005) (amended opinion). REMANDED. 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.