United States v. Mitchell

ORDER

This is a sentencing appeal. Resolution of the primary issue raised¹ may be governed by United States v. Silver, 245 F.3d 1075 (9th Cir.2001), a case which was not decided until after the sentence was imposed in this case. We therefore VACATE the sentence and REMAND the case to the district court for resentencing after holding an evidentiary hearing or such other proceedings as may be required in light of Silver.

1 . The other issue raised by this appeal also is based on a case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), not decided until after the sentence was imposed in this case. If defendant wishes to continue to pursue this point in light of subsequent case law, see, e.g., United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.2000), he should raise it again in the district court.