United States v. Davis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10527
Plaintiff-Appellee,
v.  D.C. No.
CR-98-00114-FCD
DEANGELO DOMINGO DAVIS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
March 10, 2008—San Francisco, California
Filed March 19, 2008
Before: Stephen Reinhardt, John T. Noonan, and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
2629
2630 UNITED STATES v. DAVIS
COUNSEL
Matthew M. Robinson, Robinson & Brandt, P.S.C., Cincin-
nati, Ohio, for the defendant-appellant.
McGregor W. Scott, United States Attorney, and William S.
Wong, Assistant United States Attorney, Sacramento, Califor-
nia, for the plaintiff-appellee.
OPINION
PER CURIAM:
We issued a limited remand in this case with instructions
to the district court to take two specific actions: 1) strike the
conviction and the sentence as to count four; and 2) deter-
mine, in accordance with United States v. Ameline, 409 F.3d
UNITED STATES v. DAVIS 2631
1073 (9th Cir. 2005) (en banc), whether the district court
would have imposed the same sentence had it been aware that
the Sentencing Guidelines were advisory rather than manda-
tory. See United States v. Davis, 138 F. App’x. 914, 915 (9th
Cir. 2005).
On remand, the district court struck the conviction and the
sentence as to count four. The court also declared that it
would not have imposed a different sentence on Davis had it
known that the Sentencing Guidelines were advisory. The dis-
trict court then went on, however, to reconsider Davis’s sen-
tence as to count three, increasing it substantially.
[1] Where this court expressly limits the scope of remand,
the district court is without authority to reexamine other sen-
tencing issues on remand. United States v. Pimentel, 34 F.3d
799, 800 (9th Cir. 1994). In this case, the district court
exceeded its authority when it increased Davis’s sentence on
count three. We therefore vacate Davis’s sentence and instruct
the district court to reimpose his original sentence, except that
no sentence shall be imposed on count four. No adjustment
shall be made with respect to any other count.1
VACATED AND REMANDED for the sole purpose of
resentencing as provided in this opinion.
1
Because the district court lacked authority to resentence Davis except
in accordance with the instructions contained in the limited mandate, we
do not consider Davis’s other challenges to the sentence.