UNITED STATES of America, Plaintiff-Appellee, v. Timothy John BYRNE, Defendant-Appellant, 164 F. App'x 593

MEMORANDUM Timothy Byrne appeals the sentence imposed following his guilty plea to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). Byrne contends that the district court erred in applying the Sentencing Guidelines as mandatory when imposing his sentence.

Because Byrne 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 sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hemandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional error under United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.