United States v. Lua-Gutierrez

256 F. App'x 84

Opinion

MEMORANDUM

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Vicente Lua-Gutierrez appeals from the district court’s order reaffirming his sentence following limited remand under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Lua-Gutierrez contends that because he preserved a challenge to sentencing under the mandatory Guidelines, his case should not have been remanded by this Court under the plain error analysis set forth in Ameline. We conclude that the district court was bound by this Court’s mandate, see United States v. Perez, 475 F.3d 1110, 1114 (9th Cir.2007), and therefore did not err in failing to conduct a new sentencing hearing following the determination that it .would not have imposed a materially different sentence, see Ameline, 409 F.3d at 1084.

We decline to consider Lua-Gutierrez’s contention, raised for the first time in his reply brief, that application of law-of-the case doctrine to this Court’s prior order violates due process. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.