Reynoso

ORDER and MEMORANDUM **

The petition for panel rehearing is granted.

The Memorandum Disposition filed June 24, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Jose Angel Madrigal Reynoso appeals the sentence imposed following his guilty plea conviction for use of a communications facility to facilitate a drug transaction, in violation of 21 U.S.C. § 843 (b) and (d), and unlawful entry by an alien, in violation of 8 U.S.C. § 1352 (a)(2). We have jurisdiction under 28 U.S.C. § 1291 , and we remand.

Reynoso contends that his counsel was ineffective because he failed to advocate for a downward adjustment of Reynoso’s sentence under U.S.S.G. § 2Dl.l(b)(6). Because resolution of Reynoso’s ineffective assistance of counsel claim requires the development of facts outside the record, we decline to review it on direct appeal. See United States v. Hanoum, 33 F.3d 1128, 1131-32 (9th Cir.1994) (observing that ineffective assistance claim is more properly raised by collateral attack under 28 U.S.C. § 2255 ).

The Sentencing Guidelines are no longer mandatory and we cannot determine from the record whether the sentence imposed would have been materially different…