Free Mandate of 9th Circuit - District Court of Arizona - Arizona

_ l UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10514
D.C.No. CR-03-01267-FJM
Plaintiff - Appellee,
V.
JUDGMENT
JUAN PEREZ·ROBLES,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
On consideration whereof, it is now here ordered and adjudged by this
Court, that the appeal in this cause be, and hereby is REMANDED for further
proceedings consistent with United States v. Ameline..
Filed and entered 10/ I S/05
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Nor 1-*011 PUBLICATION 00T 10 2005
cA·n~w A. CATFERSON ctznx
UNITED STATES COURT OF APPEALS 0-0- 000RT 0F A'°F"i**—0
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10514
Plaintiff - Appellee, D.C. No. CR-03-01267-FJM
v. .
M1;-;MomNDUM*
JUAN PEREZ-ROBLES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted October ll, 2005**
Before: NELSON, T.G., WARDLAW, and TALLMAN, Circuit Judges.
Juan Perez—Robles appeals the 57-month sentence imposed following his
guilty plea conviction for illegal reentry following deportation, in violation of
8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742(a).
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
H This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2). p
Case 2:O3—cr—O1267-FJIVI Document 48 Filed O2/06/2006 Page 2 of 3

Perez-Robles contends that his sentence was imposed in violation ofthe
Sixth Amendment because it was enhanced on the basis of the district court’s
determination that his prior California offense of unlawful sexual intercourse with
a minor is a crime of violence. This contention is foreclosed by United States v.
Von Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (stating that the district court
made no impermissible finding of fact because whether a prior felony is a crime of
violence "is a legal question, not a factual question coming within the purview of
Apprendi, Blekebz, and Bo0ker"). However, because Perez-Robles was sentenced
under mandatory Sentencing Guidelines, we remand for further proceedings
consistent with 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 non-
constitutional error under United Sttztes v. Booker, 125 S. Ct. 738 (2005)).
REMANDED.
K
GATHY A. GAWERSQFQ A
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