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

. ’ - K UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10021
D.C. No. CR-03-00573-EHC
Plaintiff- Appellee,
v.
JUDGMENT
ELISEO ZAPATA—RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix). -
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
I submitted.
On consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and the
conviction is hereby AFFIRMED and the sentence is REMANDEDM j
Filed and entered 12/ I0/O4
A moe cow
CATHY A. CATTERSON
Clerk 0f_C¤urt- -_
ATTEST-‘
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Deputy Clerk
Case 2:03—cr—00573-EHC Document 73 Filed O9/15/2005 Page 1 of 4

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS L E D
POR THE NINTH CIRCUIT AUG 24 ggg5
CATHY A. cA1"rERsoM c|.ERK
u.s. count or Appears
UNITED STATES OF AMERICA, No. 04-l002l
Plaintiff - Appellee, D.C. No. CR—03-00573-EHC
v.
ORDER and MEMORANDUM*
ELISEO ZAPATA-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Submitted December 6, 2004**
Before: GOODWIN, WALLACE, and TROTT, Circuit Judges.
Appellant’s pro se "Motion to Amend Under Blakefv, Booker and Fanfan"
is ordered filed and granted.
`°` This disposition is not appropriate for publication and may not be cited
to or bythe courts of this circuit except as provided by Ninth Circuit Rule 36-3.
" This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Case 2:O3—cr—OO573-EHC Document 73 Filed O9/15/2005 Page 2 of 4

The Memorandum Disposition filed December 10, 2004, is WITHDRAWN
and replaced with the following Memorandum Disposition:
Eliseo Zapata-Rodriguez appeals his guilty-plea conviction and 94-month
sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a).
• Pursuant to Anders v. Caldornio, 386 U.S. 738 (1967), counsel for Zapata-
Rodriguez has tiled a brief stating there are no grounds for relief, and a motion to
withdraw as counsel of record. Zapata-Rodriguez has not filed a pro se
supplemental brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 83 (1988), discloses no grounds for relief We affirm the conviction.
Because appellant was sentenced under the then-mandatory Sentencing
Guidelines, and 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, 1084 (9th Cir. 2005) (en banc). See United States v.
M0ren0—Hernandez, N0. 03-303 87, 2005 WL 1560269 at *9 (9th Cir. July 5,
2005) (extending Arneline’s limited remand procedure to cases involving
non-constitutional Booker error).
2
Case 2:O3—cr—OO573-EHC Document 73 Filed O9/15/2005 Page 3 of 4

The Clerk shall serve this order on appellant individually at: Eliseo Zapata
Rodriguez, Reg. No. 61719-208, CI Cibola County, Correctional Institution, P.O.
Box 3540, Milan, NM, 87021, and on counsel for appellant.
Counsel’s motion to withdraw is DENIED.
The conviction is AFFIRMED, and the sentence is REMANDED.
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Clerk 0f~C0UF*~-
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Dgpufy Clerk _
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