United States v. Jose Emilio Cortez-Arias

415 F.3d 977, 2005 U.S. App. LEXIS 14221, 2005 WL 1645691

Opinion

ORDER

The opinion filed on April 18, 2005 and published at 403 F.3d 11.11, is AMENDED as follows.

Footnote 8 states:

Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court’s recent holding in United States v. Booker , — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n. 8 (9th Cir.2005).

Footnote 8 is deleted in its entirety and replaced it with the following language:

Because Cortez-Arias waived all appellate rights except for the sole issue of whether his prior conviction was a “crime of violence,” he is not entitled to relief under the Supreme Court’s decision in United States v. Booker, — U.S. — -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and our decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005).

IT IS SO ORDERED.