Herrera-Torres

MEMORANDUM **

Alberto Herrera-Torres appeals the 77-month sentence imposed by the district *643 court for being an alien found in the United States without permission following deportation in violation of 8 U.S.C. § 1326 . 1 The facts are known to the parties, and we do not repeat them here.

Herrera-Torres argues that the district court improperly treated the Sentencing Guidelines as mandatory in determining “the kinds of sentence available” as required by 18 U.S.C. § 3553 (a) and that, by doing so, the district court failed to consider all of the factors in that section as mandated by the Supreme Court in United States v. Booker, 543 U.S. 220, 245-46 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). The record supports Herrera-Torres’s contention. The district court noted that under Booker , the Sentencing Guidelines are no longer mandatory and that it was required to impose a sentence according to the factors set forth in § 3553(a). However, when it reached the third of these factors — “the kinds of sentence available” — it implied that it viewed imprisonment as mandated by the Guidelines, stating that “[b]ecause Guidelines sentence falls within Zone D, the minimum term (77 months)…