Avaloz

ORDER AMENDING MEMORANDUM DISPOSITION; DENYING PETITIONS FOR REHEARING AND REHEARING EN BANC; AND DENYING MOTION TO STAY EN BANC PETITION

The Memorandum disposition filed on July 28, 2005, is amended as follows:

The last paragraph:

We grant a limited remand to allow the district court to determine “whether the sentence imposed would have been materially different had the district court known that the [federal sentencing] [guidelines were advisory.” United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc).

is replaced with the following paragraph:

Avaloz seeks a remand of his sentence for non-constitutional error. See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (‘We conclude that defendants are entitled to limited remands in all pending direct criminal appeals involving unpreserved Booker error, whether constitutional or nonconstitutional.”). Because the original sentencing judge is now unavailable, we VACATE Avaloz’s sentence and REMAND to the district court for a full resentencing hearing. See *651 United States v. Sanders, 421 F.3d 1044, 1052 (9th Cir.2005).

With the amended Memorandum disposition, the panel has voted unanimously to…