UNITED STATES of America, Plaintiff-Appellee, v. Cutberto DE LEON-MARISCAL, Defendant-Appellant, 255 F. App'x 198

MEMORANDUM Cutberto De Leon-Mariscal appeals from the 57-month sentence imposed following his guilty-plea conviction for unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand. De Leon-Mariscal contends that his sentence violated the Sixth Amendment because it was imposed under the mandatory Sentencing Guidelines, prior to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We vacate and remand because De Leon-Mariscal preserved his claim that he is entitled to resentencing under the advisory Guidelines, and the government cannot show that the error is harmless. See United States v. Beng-Salazar, 452 F.3d 1088, 1091-92, 1097 (9th Cir.2006). Because we remand for resentencing, we need not reach De Leon-Mariscal’s remaining contention that the district court erred by finding a fact beyond the fact of his prior conviction when it determined that he was removed subsequent to the conviction. See United States v. Bolanos-Hernandez, 492 F.3d 1140, 1148 (9th Cir.2007). VACATED and REMANDED.

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