United States v. Mertens

277 F. App'x 716

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2008
• Docket: No. 07-30077
• Status: Published

Opinion

MEMORANDUM

**

Defendant Robert Leon Mertens appeals the district court’s holding, on remand from this court, that it would not have imposed a different sentence under the now-advisory United States Sentencing Guidelines. We affirm.

1. The district court correctly interpreted our “limited remand” as a remand pursuant to the procedures announced in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Mertens, 166 Fed.Appx. 955, 958 (9th Cir.) (unpublished disposition) (“Our decision in United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir.2005), obliges us to order a limited remand to the district court.”), cert. denied, 547 U.S. 1158, 126 S.Ct. 2312, 164 L.Ed.2d 831 (2006). Although we cited Moreno-Hernandez, not Ameline, the former case interpreted and applied the latter.

2. We decline to exercise our discretion to reach Defendant’s argument concerning crack cocaine, raised for the first time in a post-briefing letter. See United States v. Schiff, 379 F.3d 621, 630 (9th Cir.2004) (holding that we may decline to reach an issue raised for the first time on appeal). Our decision does not prejudice Defendant’s right to seek re-sentencing through the procedures set forth at 18 U.S.C. § 3582(c)(2).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.