United States v. Leung

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-50098 Plaintiff-Appellee, D.C. No. v.  CR-01-00492- DAVID CHI PING LEUNG, ABC-01 Defendant-Appellant.  ORDER

On Remand from the United States Supreme Court

Filed August 4, 2005

Before: Alfred T. Goodwin, Harry Pregerson, and Richard C. Tallman, Circuit Judges.

ORDER

David Leung was convicted of possession with intent to distribute methylenedioxy-methamphetamine (“Ecstacy”) in violation of 21 U.S.C. § 841(a)(1), and was sentenced to a term of imprisonment of 151 months. Leung appealed the admission of expert testimony regarding unknowing couriers, the admission of his post-arrest statements, the district court’s refusal to give a “mere presence” instruction to the jury, the sufficiency of the evidence, and the denial of a sentencing adjustment. We affirmed Leung’s conviction and sentence in a memorandum disposition. United States v. Leung, 95 Fed. Appx. 876 (9th Cir. 2004). The Supreme Court vacated that disposition and remanded to this court in light of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). Leung v. United States, ___ U.S. ___, 125 S. Ct. 1046, 160 L.Ed.2d 992 (2005). We now reaffirm Leung’s conviction for the reasons stated in our original disposition.

10025 10026 UNITED STATES v. LEUNG See Leung, 95 Fed. Appx. at 876. We grant a limited remand to allow the district court to determine “whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc).

REMANDED. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2005 Thomson/West.