UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis GARIBAY-GARIBAY, Defendant-Appellant, 141 F. App'x 664

MEMORANDUM Jose Luis Garibay-Garibay appeals his sentence imposed following his guilty plea to re-entry of a deported alien, in violation of 8 U.S.C. § 1326(a). Garibay-Garibay was sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005), that the Sentencing Guidelines were effectively advisory. He contends that his case should be remanded for resentencing under the advisory Guidelines. 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, No. 03-30387, slip op. 7773, 7793-94, 2005 WL 1560269 (9th Cir. July 5, 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.