United States v. McElwee

142 F. App'x 983

Opinion

MEMORANDUM

Footnotes

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The Supreme Court vacated our judgment entered December 17, 2004, and remanded for further consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Stephen McElwee appealed from his sentence imposed following his guilty plea conviction for transporting visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1) and possession of one or more matters containing depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2256. McElwee contends that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) authorized this court’s review of the district court’s denial of his motion for a downward departure.

McElwee was sentenced before the Supreme Court held that the Sentencing Guidelines were effectively advisory. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). The discretionary denial of a downward departure under the pre-Booker mandatory Guidelines is unreviewable. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam). Nonetheless, the record does not show how the district court would have proceeded had it known that the Guidelines were not mandatory. Accordingly, we remand for the district court to answer the question whether the sentence would have been materially different if it had known that the Guidelines were advisory and for further proceedings under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir.2005) (second amended opinion).

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.