United States v. Awbery

163 F. App'x 553

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2006
• Docket: No. 04-30284
• Status: Published

Opinion

MEMORANDUM

**

Christopher J. Awbery appeals the 270-month sentence imposed following his guilty plea conviction for conspiracy to distribute more than 500 grams of a mixture containing methamphetamine, in violation of 21 U.S.C. § 846 (Count 1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2).

The district court added two levels to Awbery’s base offense level based upon a quantity of drugs not established by his guilty plea nor found by a jury beyond a reasonable doubt. As Awbery preserved his Sixth Amendment challenge to the calculation of the sentencing range based on the quantity of drugs determined by the sentencing judge, he is entitled to a new sentencing hearing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Therefore, we VACATE the sentence imposed by the district court, and REMAND for resentencing consistent with Booker. United States v. Kortgaard, 425 F.3d 602, 610-11 (9th Cir.2005).

VACATED and 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 Ninth Circuit Rule 36-3.