UNITED STATES of America, Plaintiff-Appellee, v. Jhonny TINOCO-OROZCO, Defendant-Appellant, 143 F. App'x 886

MEMORANDUM Jhonny Tinoco-Orozeo appeals his 97-month sentence following a guilty plea to possession with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291. Tinoco-Orozco was sentenced before the Supreme Court issued its decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Because we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the United States Sentencing Guidelines were advisory, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir.2005) (extending the Ameline remand to cases involving non-constitutional Booker error). 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.