United States v. Antonio Rodriguez-Preciado, AKA Tony Rodriguez-Preciado , 416 F.3d 939 ( 2005 )

416 F.3d 939

UNITED STATES of America, Plaintiff-Appellee,
v.
Antonio RODRIGUEZ-PRECIADO, aka Tony Rodriguez-Preciado, Defendant-Appellant.

No. 03-30285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2004.

Filed March 4, 2005.

Amended July 29, 2005.

James F. Halley, Portland, OR, for the defendant-appellant.

Karin J. Immergut, United States Attorney, and J. Russell Ratto, Special Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-96-00311-ALH-(2).

Before WALLACE, GOULD, and BERZON, Circuit Judges.

ORDER

1

The court's majority opinion filed March 4, 2005, slip op. 2539, and appearing at 399 F.3d 1118 (9th Cir.2005), is hereby amended as follows:

2

1. On page 2544, line 9, replace "We affirm." with "We affirm, but issue a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc)."

3

2. On page 2562, line 3, delete "AFFIRMED" and add a new Section V reading as follows:

4

We now address the impact of the recent en banc decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc) on this case. Because 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 will remand to the sentencing court to answer that question." Id. at 1084. The mandate shall issue forthwith.

5

AFFIRMED IN PART, REMANDED IN PART.