United States v. Ikari

148 F. App'x 637

Opinion

MEMORANDUM

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Donald James Ikari appeals his sentence imposed following his guilty plea to possession of child pornography in violation of 18 U.S.C. § 2252A. He contends that pursuant to Blakely v. Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his constitutional rights in making upward adjustments under U.S.S.G. § 2G2.4(b). Ikari was sentenced before the United States Supreme Court held in United States v. Booker, - U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005), that the Sentencing Guidelines were effectively advisory. The record does not show how the district court would have proceeded if it had known that the Guidelines were not mandatory, and the original sentencing judge is not available. Accordingly, we vacate the sentence and remand for resentencing. See United States v. Sanders, 421 F.3d 1044 (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.