UNITED STATES of America, Plaintiff-Appellee, v. Abdulah ZARGAR, Defendant-Appellant, 143 F. App'x 65

MEMORANDUM Abdulah Zargar appeals his 105-month sentence imposed after this court vacated his original sentence and remanded for re-sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand for re-sentencing under the advisory guidelines. Zargar contends that the district court erred in departing upward one criminal history category pursuant to U.S.S.G. § 4A1.3(

e) based on past criminal conduct that was dissimilar to the crimes in the underlying conviction and was not supported by reliable evidence. We disagree. As we recognized in United States v. G.L., 143 F.3d 1249, 1254 (9th Cir.1998), “[U.S.S.G.] § 4A1.3(

e) does not mandate that prior criminal conduct be either similar or adult to warrant departure.” Id. Moreover, we cannot say that the district court abused its discretion by departing upwards one criminal history category based on insufficient or unreliable evidence. See United States v. Marina-Cuevas, 147 F.3d 889, 894-95 (9th Cir.1998).

Although we agree that the district court was within its discretion to depart upward one criminal history category pursuant to U.S.S.G. § 4A1.3 under the then mandatory sentencing guidelines, we cannot automatically affirm Zargar’s sentence because the Sentencing Guidelines are no longer mandatory. See United States v. Booker, - U.S. -,---, 125 S.Ct. 738, 764-67, 160 L.Ed.2d 621 (2005). We remand Zargar’s sentence pursuant to United States v.

Ameline, 409 F.3d 1073 (9th Cir.2005), for the district court to determine whether it would have sentenced Zargar differently under the now-advisory federal sentencing guidelines. If so, the district court shall vacate Zargar’s sentence and re-sentence him under the post-Booker advisory Guidelines. If not, Zargar’s sentence shall remain undisturbed. See United States v. Hermoso-Garcia, 413 F.3d 1085 (9th Cir.2005). Zargar’s motion for leave to file a reply brief is granted. The Clerk is directed to file the reply brief that was received on October 28, 2003. Sentence 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.