United States v. Mitsoyianis

145 F. App'x 621

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2005
• Docket: No. 04-30351; D.C. No. CR-03-00059-SEH
• Status: Published

Opinion

MEMORANDUM

**

John Mark Mitsoyianis appeals his 63-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Mitsoyianis has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Mitsoyianis has not filed a pro se supplemental brief.

We have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the conviction. Because Mitsoyianis was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand the sentence for further proceedings consistent with 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, 916 (9th Cir.2005).

Counsel’s motion to withdraw as counsel on appeal is denied. The conviction is AFFIRMED, and the sentence is 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 9th Cir. R. 36-3.