United States v. Gold

145 F. App'x 606

Opinion

ORDER and MEMORANDUM

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The panel has voted to grant the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. See Fed. R. App. P. 35.

The petition for panel rehearing is granted, and the petition for rehearing en banc is denied.

The motion to stay the mandate is denied as moot.

The Memorandum Disposition filed June 21, 2004, is WITHDRAWN and replaced with the following Memorandum Disposition:

Mitchell David Gold appeals his guilty-plea convictions and 97-month sentence for mail fraud, in violation of 18 U.S.C. § 1341, and money laundering, in violation of 18 U.S.C. § 1956(a)(l)(A)(i).

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Gold has filed a brief stating that there are no grounds for relief, and a motion to withdraw as counsel of record. Gold has filed a pro se supplemental opening brief.

We have conducted an independent review of the briefs and record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S. Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the convictions.

We remand the sentence. The Sentencing Guidelines are no longer mandatory and we cannot determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory. See United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). On remand, therefore, the district court should consider in its discretion appellant’s sentence in light of Ameline.

Counsel’s motion to withdraw as counsel on appeal is denied.

The convictions are AFFIRMED, and the sentence is 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.