UNITED STATES of America, Plaintiff-Appellee, v. Sung U. PAEK, Defendant-Appellant, 144 F. App'x 679

MEMORANDUM Sung U. Paek appeals the 46 months of imprisonment imposed upon resentencing following his guilty plea conviction for being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Because appellant was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the 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, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 915-16 (9th Cir.2005) (extending Ameline’s limited remand procedure 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 9th Cir. R. 36-3.