United States v. Jose Emilio Cortez-Arias ( 2005 )

415 F.3d 977

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Emilio CORTEZ-ARIAS, Defendant-Appellant.

No. 04-10184.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2004.

Filed April 18, 2005.

Amended July 14, 2005.

Robert B. Walker, Carson City, NV, for the appellant.

Daniel G. Bogden, United States Attorney, and Robert Don Gifford, Assistant United States Attorney, Reno, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CR-03-00192-HDM/VPC.

Before D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges.

ORDER

1

The opinion filed on April 18, 2005 and published at 403 F.3d 1111, is AMENDED as follows.

Footnote 8 states:

2

Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court's recent holding in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n. 8 (9th Cir.2005).

3

Footnote 8 is deleted in its entirety and replaced it with the following language:

4

Because Cortez-Arias waived all appellate rights except for the sole issue of whether his prior conviction was a "crime of violence," he is not entitled to relief under the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and our decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005).

5

IT IS SO ORDERED.