UNITED STATES of America, Plaintiff-Appellee, v. Pedro PEREZ-RODRIGUEZ, Defendant-Appellant, 227 F. App'x 683

MEMORANDUM Pedro Perez-Rodriguez appeals from the 41-month sentence imposed following his guilty-plea conviction for unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the sentence and remand. Perez-Rodriguez contends that the district court erred by treating the Sentencing Guidelines as mandatory at his post-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing hearing. On this record it is unclear whether the district court treated the Guidelines as mandatory, rather than advisory.

See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir.2006) (noting that the district court has discretion to sentence both above and below the suggested Guidelines range). Accordingly, we vacate the sentence and remand to allow the district court to re-sentence Perez-Rodriguez and to clarify that it understands the Guidelines to be advisory. We express no opinion as to the ultimate sentence after remand. We grant appellant’s request for judicial notice filed on May 11, 2006. SENTENCE VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.