Hernandez

MEMORANDUM **

Hernandez appeals from the district court’s order declining to resentence him following a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). Because the district court failed to obtain the views of counsel and to offer an appropriate explanation for not resentencing Hernandez, we reverse and remand.

In United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the Supreme Court held that the Federal Sentencing Guidelines are advisory. Our court’s en banc decision in Ameline instructed for cases pending on direct review when Booker was decided a judge, who had sentenced a defendant under the mistaken albeit understandable belief that the Guidelines were mandatory, to determine whether the sentence would have “differed materially” had the judge applied the Guidelines as advisory. Ameline, 409 F.3d at 1085 . In doing so, Ameline required the district court judge to obtain the “views of counsel, at least in writing” and to offer an “appropriate explanation” if determining that the sentence would not have been materially different. Id.

In the instant case, the district court stated at the initial,…