UNITED STATES of America, Plaintiff-Appellee, v. Raul MARTINEZ-MARTINEZ, Defendant-Appellant, 163 F. App'x 546

MEMORANDUM Raul Martinez-Martinez appeals the sentence imposed following his guilty plea to unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326. Martinez-Martinez contends that his sentence in excess of two years, based on a sentencing enhancement under 8 U.S.C. § 1326(b)(2) for a prior aggravated felony conviction, is illegal and violated due process under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Martinez-Martinez acknowledges, his contention has been rejected by this court. See United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000).

Because Martinez-Martinez 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 district 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, 916 (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.