UNITED STATES of America, Plaintiff-Appellee, v. John R. POWELL, Defendant-Appellant, 154 F. App'x 566

MEMORANDUM John R. Powell appeals his 15-month sentence imposed following a guilty plea to two counts of wire fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand for resentencing. Powell 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 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 9th Cir. R. 36-3.