United States v. Octavio Hermoso-Garcia

Octavio Hermoso-Garcia (“Hermoso-Garcia”), a native and citizen of Mexico, was convicted of being an alien who reentered the United States after deportation without first obtaining permission for reentry in violation of 8 U.S.C. § 1326 and sentenced to sixty-three months’ imprisonment. Hermoso-Garcia now appeals the district court’s: (1) denial of his motion to dismiss the indictment; (2) imposition of a 16-level increase under the United States Sentencing Guidelines (“U.S.S.G.” or “Sentencing Guidelines”) § 2L1.2(b)(l)(A)(ii); and (3) imposition of a 63-month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the conviction, but remand the sentence to the district court in light of United States v. Booker, — U.S. —, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc).

I.

Hermoso-Garcia first entered the United States without inspection in the early 1990s. In 1995, Hermoso-Garcia married a U.S. citizen and on May 12,1995, his wife filed Form .1-130 (“Immigrant Petition For Relative, Fiancee or Orphan”) seeking a visa for him on the basis of his having a U.S. citizen spouse. On September 8,…