UNITED STATES of America, Plaintiff-Appellee, v. Eddy Fritzner FLEURIVAL, Defendant-Appellant, 146 F. App'x 916

MEMORANDUM Eddy Fritzner Fleurival (“Fleurival”) appeals his sentence following his guilty plea to one count of bank fraud in violation of 18 U.S.C. § 1344 and one count of possessing at least 15 unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). We have jurisdiction under 28 U.S.C. § 1291 and we remand. The district court enhanced Fleurival’s sentence after finding that he used 5 or more means of identification, there were more than 50 victims, and there was a loss of approximately $825,000.

On appeal, for the first time, Fleurival argues that the district court violated his Sixth Amendment rights because the enhancements were based on facts that he never admitted and that were never proven to a jury. Accordingly, we review for plain error. United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). Fleurival’s sentence was imposed in the pre-Booker mandatory guidelines framework. Although Fleurival pled guilty to two instances of bank fraud, the sentencing enhancements were based on facts not admitted by Fleurival at his change of plea hearing, or proven to a jury.

Therefore, the enhancements were improper and Fleurival’s sentence violated the Sixth Amendment. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

In Ameline, we held that “when we are faced with an unpreserved Booker error that may have affected a defendant’s substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purposes of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Ameline, 409 F.3d at 1074.

Because this case involves an unpreserved Booker error that directly affects Fleurival’s substantive rights, and it is uncertain as to whether the court would have “imposed a materially different sentence” were it operating in the post-Booker advisory guideline framework, we remand so that the district court may answer that question. Id. Accordingly, we remand this case for further proceedings consistent with Ameline. 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.