
    UNITED STATES of America, Plaintiff—Appellee, v. Jose Manuel ARCE-RODRIGUEZ, Defendant—Appellant.
    No. 04-30121.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 1, 2005.
    
    Decided Aug. 15, 2005.
    
      Katherine Jill Bolton, Esq., Office of the U.S. Attorney, Yakima, WA, for PlaintiffAppellee.
    Anne Walstrom, Esq., Elizabeth Dahlstrom, Esq., Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for D efendant-Appellant.
    Before: O’SCANNLAIN, CALLAHAN, and BEA, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

José Arce-Rodriguez appeals his sentence imposed after his guilty plea to “alien in U.S. after deportation” in violation of 8 U.S.C. § 1326. He contends that his 27-month sentence exceeded the statutory maximum allowed under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because he did not admit, and the government did not prove to a jury, his prior aggravated felony conviction, which the court used to increase his term pursuant to 8 U.S.C. § 1326(b)(2) and the United States Sentencing Guidelines. He also contends that by requiring the district court to determine the nature of the prior conviction, and not the mere fact of its existence, U.S.S.G. § 2L1.2(b)(l)(C) violates the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) . These contentions are foreclosed by this court’s case law. See United States v. Moreno-Hernandez, 2005 WL 1560269, No. 03-30387, slip op. 7773, 7790 n. 8 (9th Cir. July 5, 2005) (amended opinion).

Arce-Rodriguez was sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005) , that the Sentencing Guidelines were effectively advisory. The record does not show how the district court would have proceeded if it had known that the Guidelines were not mandatory. Accordingly, we remand for the district court to answer the question whether the sentence would have been materially different if it had known that the Guidelines were advisory, and for further proceedings under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See Moreno-Hernandez, 2005 WL 1560269, slip op. at 7793-94.

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 Ninth Circuit Rule 36-3.
     