United States v. Morfin-Munoz

268 F. App'x 662

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2008
• Docket: No. 05-30580
• Status: Published

Opinion

MEMORANDUM

**

Mesdrain Morfin-Munoz appeals from the district court’s determination, upon limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), that it would not have imposed a materially different sentence under advisory Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Morfin-Munoz contends that the district court erred by calculating his advisory Sentencing Guidelines sentence based on a quantity of methamphetamine that was neither admitted by him nor found by a jury beyond a reasonable doubt. We reject this contention because the district court was entitled to rely on facts it found by a preponderance of the evidence. See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.2006).

The district court did not solicit the views of counsel before deciding whether to re-sentence Morfin-Munoz under United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005). This error requires us to re-remand the case for compliance with Ameline. See United States v. Montgomery, 462 F.3d 1067, 1069 (9th Cir.2006).

REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.