United States v. Martinez

MEMORANDUM ** Samuel Martinez appeals from his guilty-plea conviction and the 77-month sentence imposed for being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 (a). Pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), counsel for Martinez has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Martinez has filed a pro se supplemental brief, and the government has filed an answering brief. We have reviewed the briefs and conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 , 109 S.Ct. 346 , 102 L.Ed.2d 300 (1988). We affirm the conviction. Because appellant 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 (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). In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we also remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrerar-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)). Counsel’s motion to withdraw on appeal is DENIED without prejudice to renewing the motion in the district court. All other pending motions are DENIED. The conviction is AFFIRMED. The sentence is 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.