United States v. Albert Tito Perez

After United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), we adopted a limited remand procedure for certain cases in which the defendant had failed to object to the use of mandatory sentencing guidelines. Specifically, in cases where the record of trial is insufficient for us to determine whether the district court would have imposed a different sentence had it known the sentencing guidelines were advisory, we now require a so-called “limited Ameline remand.” See United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). Under such a remand, the district court is given the opportunity to consider whether it would have imposed the same sentence had the guidelines been only advisory at the time of initial sentencing. If the district court decides it would have imposed the sentence regardless of the now-advisory nature of the guidelines, the sentence stands. If the district court decides the sentence would not have been the same, then a full re-sentencing will take place. Id. at 1079, 1084-85 .

However, where the trial record is sufficient for us to determine that but for the mandatory nature of sentencing guidelines pre-Booker there is a…