Hernandez-Gutierrez

MEMORANDUM **

Salvador Hernandez-Gutierrez appeals from the sentence imposed following his guilty plea conviction for being a deported alien found in the United States without permission in violation of 8 U.S.C. § 1326 . *655 We have jurisdiction pursuant to 28 U.S.C. § 1291 .

Because Hernandez-Gutierrez was sentenced under the then-mandatory Sentencing Guidelines, and because we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving nonconstitutional error).

Remand is also warranted because it is equally unclear whether the district court considered the sentencing factors in 18 U.S.C. § 3553 (a), factors left intact by the Booker Court. See United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 764 , 160 L.Ed.2d 621 (2005) (‘Without the ‘mandatory’ provision, the Act nonetheless…