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United States v. Jimenez-Cid
Citation: 143 F. App'x 843Docket: No. 04-50282; D.C. No. CR-03-00061-RT
Court: Court of Appeals for the Ninth Circuit; September 15, 2005; Federal Appellate Court
Joel Jimenez-Cid appeals his 46-month sentence following a guilty plea for being an illegal alien found in the U.S. after deportation, violating 8 U.S.C. § 1326. He argues that the district court erred by not granting a downward departure based on factors such as extraordinary childhood abuse, reduced mental capacity, cultural assimilation, and overstatement of his criminal history. The sentencing occurred before the Supreme Court's decision in United States v. Booker, which transformed the sentencing guidelines from mandatory to advisory. The Ninth Circuit holds that the discretionary denial of a downward departure under the mandatory guidelines is not subject to review, referencing United States v. Linn. However, due to uncertainty about whether the sentence would differ if the district court had treated the guidelines as advisory, the case is remanded for further consideration, following the precedent set in United States v. Ameline. The district court is also instructed to correct the judgment by removing the reference to 8 U.S.C. § 1326(b)(2). The disposition of this case is not for publication and is not to be cited except as permitted by Ninth Circuit Rule 36-3.