United States v. Mackenstadt

111 F. App'x 944

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2004
• Docket: No. 04-30138
• Status: Published

Opinion

MEMORANDUM

*

1. The district court did not err in adding three criminal history points for defendant’s burglary conviction. Defendant’s two-year sentence to continuous confinement at Montana State Hospital at Warm Springs was a “sentence of imprisonment exceeding one year and one month.” See U.S.S.G. § 4Al.l(a).

2. The district court increased defendant’s base offense level by four after determining that his arson caused between $10,000 and $30,000 in losses. See U.S.S.G. § 2Bl.l(b)(l)(C). Defendant contends, in a letter submitted under Rule 28(j), that this enhancement violates Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). If defendant had been sentenced “solely on the basis of the facts admitted in the guilty plea,” id. at 2537, he would already have completed his sentence. We therefore “remand the case to the district court for whatever action it determines to be proper under the circumstances. Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of [United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, — U.S.-, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004) (No. 04-104) ] and [United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, — U.S. -, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004) (No. 04-105) ], with or without granting bail to the defendant.” United States v. Castro, 382 F.3d 927, 929 (9th Cir.2004).

AFFIRMED IN PART; REMANDED IN PART.

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.