United States v. Johnson

166 F. App'x 279

Opinion

MEMORANDUM

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Anthony Leon Johnson appeals the 262-month sentence imposed following his guilty-plea conviction for conspiracy, aiding and abetting, and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846 and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Johnson contends that the district court’s application of the career offender enhancement under U.S.S.G. § 4B1.1 violates the Sixth Amendment as interpreted by Apprendi v. New Jersey and United States v. Booker and therefore exceeds the statutory maximum penalty because the increase was based on facts that were not alleged in the indictment and were not found by a jury beyond a reasonable doubt or specifically admitted to by plea. This contention is foreclosed by United States v. Von Brown, 417 F.3d 1077, 1078-79 (9th Cir.2005).

Because Johnson was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether any error in the imposition of the sentence under the then-mandatory Sentencing Guidelines was harmless, 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, 916 (9th Cir.2005).

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.