United States v. Jaffa

171 F. App'x 215

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2006
• Docket: No. 04-50408; D.C. No. CR-03-00420-RMT-3
• Status: Published

Opinion

MEMORANDUM

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The United States appeals from the district court’s judgment, which sentenced Jaffa to “time served” following Jaffa’s guilty plea conviction for conspiracy to possess stolen mail, in violation of 18 U.S.C. § 371. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the sentence and remand.

The government contends that Jaffa’s sentence should be vacated and that this case should be remanded for resentencing because the district court, which sentenced Jaffa after the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before its decision in United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621 (2005), believed that it was not permitted to find any additional enhancements in light of Blakely. We agree. See Booker, 543 U.S. at 267-68, 125 S.Ct. 738 (vacating and remanding defendant Fanfan’s sentence upon the government’s appeal where the sentencing court held that Blakely was applicable to the federal sentencing guidelines and imposed a sentence that was authorized by the jury verdict, but lower than authorized by the guidelines).

Jaffa contends that remanding for re-sentencing violates his due process rights and ex post facto principles. This contention is foreclosed by United States v. Dupas, 419 F.3d 916, 920-21, 24 (9th Cir. 2005).

SENTENCE 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 9th Cir. R. 36-3.