UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon ORTEGA-BALDERAS, Defendant-Appellant, 163 F. App'x 614

MEMORANDUM Juan Ramon Ortega-Balderas appeals the 78-month sentence imposed following his guilty-plea conviction for importation of cocaine in violation of 21 U.S.C. §§ 952 and 960, and 18 U.S.C. § 2. Under the circumstances of this case, we conclude that the plea agreement waiver is not enforceable. See United States v. Buchanan, 59 F.3d 914, 918 (9th Cir.1995). 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 mandatory.

Accordingly, 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, 916 (9th Cir.2005). 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.