United States v. Kaing

135 F. App'x 129

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2005
• Docket: No. 04-10301
• Status: Published

Opinion

MEMORANDUM

**

Defendant Kenny Ly Kaing appeals the sentence imposed by the district court. The sentence was imposed under the Sentencing Guidelines based on facts that were not admitted by Defendant or determined by a jury beyond a reasonable doubt.

After the district court imposed Defendant’s sentence, the Supreme Court held that in order to avoid a violation of a defendant’s Sixth Amendment rights by the imposition of mandatory sentence enhancements based on judge-found facts, the Sentencing Guidelines were advisory, not mandatory. United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Consequently, we remand Defendant’s sentence so the district court can determine “whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory.” United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc). The district court should follow the procedures outlined in Ameline. See id. at 1084-85.

SENTENCE 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.