UNITED STATES of America, Plaintiff-Appellee, v. Rene SOTO, Defendant-Appellant, 145 F. App'x 227

MEMORANDUM Rene Soto appeals his 51-month sentence imposed following a jury trial conviction for illegal re-entry into the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We remand to the sentencing court 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, 2005 WL 1964483 at *8 (9th Cir. Aug.17, 2005) (extending the Ameline remand to cases involving non-constitutional Booker error).

Further, because the district court did not have the benefit of this Court’s decision in Penuliar v. Ashcroft, 395 F.3d 1037, 1045-46 (9th Cir.2005), we instruct the district court to consider it upon remand. 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.