Dearinger

MEMORANDUM ***

Robert R. Dearinger appeals his sentence of 100 months in prison following his plea of guilty to bank robbery in violation of 18 U.S.C. § 2113 (a).

Dearinger argues that the district court committed nonconstitutional error by sentencing him under the mandatory United States Sentencing Guidelines (“U.S.S.G.”) in violation of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 756-57 , 160 L.Ed.2d 621 (2005). Because Dearinger preserved the Booker error, we review for harmless error. See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir.2002). Under the harmless error standard, the government failed to meet its burden to establish that “it is more probable than not that the error did not materially affect the verdict.” See id. Although the district court departed downward from the Guidelines range, the record is insufficiently clear to conduct a complete harmless error analysis. Cf. United States v. Ameline, 409 F.3d 1073, 1074-75 (9th Cir.2005) (en banc). Therefore, we will apply the limited remand procedure approved in Ameline .

Dearinger also appeals the district court’s finding that his prior convictions are predicate offenses under U.S.S.G. § 4B1.1.…