United States v. David Chi Ping Leung

418 F.3d 1003, 2005 U.S. App. LEXIS 16037, 2005 WL 1839169

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2005
• Docket: 03-50098
• Status: Published

Opinion

ORDER

David Leung was convicted of possession with intent to distribute methylenedi-oxy-methamphetamine (“Ecstacy”) in violation of 21 U.S.C. § 841(a)(1), and was sentenced to a term of imprisonment of 151 months. Leung appealed the admission of expert testimony regarding unknowing couriers, the admission of his post-arrest statements, the district court’s refusal to give a “mere presence” instruction to the jury, the sufficiency of the evidence, and the denial of a sentencing adjustment. We affirmed Leung’s convic tion and sentence in a memorandum disposition. United States v. Leung, 95 Fed. Appx. 876 (9th Cir.2004). The Supreme Court vacated that disposition and remanded to this court in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Leung v. United States , — U.S. -, 125 S.Ct. 1046, 160 L.Ed.2d 992 (2005). We now reaffirm Leung’s conviction for the reasons stated in our original disposition. See Leung, 95 Fed.Appx. at 876. We grant a limited remand to allow the district court to determine “whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc).

REMANDED.