United States v. Edwards , 158 F. App'x 930 ( 2005 )

MEMORANDUM ^*

The United States appeals a sentence imposed upon defendant Duncan William Edwards following his guilty plea conviction for bankruptcy fraud, in violation of 18 U.S.C. § 152(9) and making false statements to a bank, in violation of 18 U.S.C. § 1014. The court sentenced the defendant to seven months house arrest followed by five years probation. The presentence report had recommended a sentence enhancement, but the district court felt itself bound by the then recent three judge panel decision in United States v. Ameline, 376 F.3d 967 (9th Cir.2004) (Ameline I). Under that decision, the court was precluded from relying on any factors not found by the jury in determining defendant’s sentence.

We subsequently ordered Ameline I reheard en banc, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We held that where, as here, a district court believed itself bound by pre-Booker law, we should remand for the district court to determine whether it would have imposed a different sentence had it understood that the Guidelines were advisory. United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (Ameline II). Accordingly, the parties agree that we must, at least, remand this case under Ameline II.

The.government asks us further to hold, as a matter of law, that the sentence imposed was unreasonable pursuant to 18 U.S.C. § 3553(a)(2). This we decline to do. The sentence imposed after the Ame-line remand may well be different from the sentence imposed, and the government will be free to argue at that point, if it so desires, that the remaining sentence is unreasonably low. Moreover, we believe that the orderly development of the law under § 3553(a)(2) would be furthered by the district court’s addressing the reasonableness issue in the first instance.

The remaining contention that Booker violates ex post facto principles has been decided in United States v. Dupas, 419 F.3d 916 (9th Cir.2005). There is no ex post facto violation.

Pursuant to Ameline, the sentence is 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.