United States v. Mascoto

53 F. App'x 416

Opinion

MEMORANDUM

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The United States appeals from the district court’s 87-month sentence imposed on Russell Gordon Mascoto following his guilty plea conviction for possession with intent to distribute methamphetamine in violation of 28 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s legal interpretation of the sentencing guidelines. United States v. Thickstun, 110 F.3d 1394, 1400 (9th Cir.1997). We vacate and remand for re-sentencing.

The government challenges the district court’s decision not to impose the 10-year mandatory minimum sentence required under 21 U.S.C. § 841(b)(1)(A). In declining to impose the 10-year minimum, the district court relied on the three-judge panel decision in United States v. Buckland, 259 F.3d 1157 (9th Cir.2001), which was subsequently reversed in United States v. Buckland, 289 F.3d 558, 565-66 (9th Cir.2002) (en banc). Because the en banc decision applies retroactively, we vacate Mascoto’s sentence and remand to the district court in conformity with the en banc decision. See United States v. Hosoi, No. 01-10604, slip op. at 5, 2002 WL 31628403 (9th Cir. Nov.22, 2002) (per curiam) (vacating sentence and remanding for re-sentencing in light of en banc decision in United States v. Buckland).

SENTENCE VACATED; REMANDED FOR RE-SENTENCING.

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.