United States v. Gardner

121 F. App'x 285

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2005
• Docket: No. 03-50346; D.C. No. CR-02-00851-RSWL-2
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Marlon Gardner appeals his 37-month sentence following his guilty plea to conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm in part and vacate and remand for resentencing.

Gardner contends that the requirement under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135, that individuals on supervised release provide a DNA sample is unconstitutional. This contention is foreclosed by United States v. Kincade, 379 F.3d 813, 832-34 (9th Cir. 2004) (en banc).

We vacate the sentence and remand for resentencing in light of United States v. Booker, — U.S.-,-, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005), and United States v. Ameline, 400 F.3d 646, No. 02-30326, 2005 WL 350811 (9th Cir. Feb. 10, 2005).

AFFIRMED in part; 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.