United States v. Delaney

314 F. App'x 43

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2008
• Docket: No. 06-50604
• Status: Published

Opinion

MEMORANDUM

**

Daniel Luis Delaney appeals from the district court’s decision, following a limited remand under United States v. Moreno-Hernandez, 419 F.3d 906, 915-16 (9th Cir.2005), that the sentence it imposed would not have been materially different had it known that the Sentencing Guidelines were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Delaney contends that the district court’s decision not to resentence him was unreasonable because, upon remand, the district court: (1) did not have sufficient evidence regarding his history and characteristics; and (2) did not consider the factors set forth in 18 U.S.C. § 3553(a). We conclude that the district court “properly understood the full scope of [its] discretion in a post -Booker world.” See United States v. Combs, 470 F.3d 1294, 1296-97 (9th Cir.2006).

Delaney also contends that his sentence is unreasonable because, at his original sentencing hearing, the district court failed to consider the § 3553(a) factors. However, Delaney has already received the remedy for an unpreserved claim of nonconstitutional Booker error, see Moreno-Hernandez, 419 F.3d at 915-16, and the district court’s subsequent decision not to resentence him indicates that the error did not affect his substantial rights, see United States v. Thornton, 511 F.3d 1221, 1225 (9th Cir.2008).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.