United States v. Isadore

142 F. App'x 990

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2005
• Docket: No. 05-30019; D.C. No. CR-04-02084-WFN
• Status: Published

Opinion

MEMORANDUM

**

Allen Tom Isadore appeals the sentence imposed following his guilty plea conviction for distribution of cocaine, in violation of 21 U.S.C. § 841(c). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Isadore contends that he is entitled to resentencing because he was sentenced under the mandatory sentencing guidelines later ruled unconstitutional by the Supreme Court in United States v. Booker, —- U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and suggests that the district court, which denied his request for a downward departure, may treat his request differently under an advisory guidelines system and upon consideration of the factors set forth in 18 U.S.C. § 3553(a).

Although the discretionary denial of a downward departure under the pre-Booker mandatory Guidelines is unreviewable, see United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam), we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory. Accordingly, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 911 (9th Cir.2005) (extending the Ameline limited remand procedure to cases involving non-constitutional Booker error).

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 9th Cir. R. 36-3.