United States v. Marquez

MEMORANDUM ^**

Josefina Arvizu Marquez appeals from the 66-month sentence she received following a jury-trial conviction for conspiracy to possess with intent to distribute heroin, methamphetamine, and marijuana, in violation of 21 U.S.C. §§ 841(a) and 846, and for attempting to provide contraband to a prison inmate, in violation of 18 U.S.C. § 1791(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Marquez contends that the district court’s condition of supervised release requiring her to report to the probation officer within 72 hours of reentry into the United States violates the Fifth Amendment. This contention is foreclosed by this court’s opinion in United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir.2006).

However, because Marquez 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 district 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. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline’s limited remand procedure to cases involving non-constitutional error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

REMANDED.

** 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.