United States v. Moscrop

144 F. App'x 652

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2005
• Docket: Nos. 04-50255, 04-50265
• Status: Published

Opinion

MEMORANDUM

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Benjamin Moscrop and Abbas Ali Khan appeal their sentences imposed following their guilty pleas to conspiracy to pass counterfeit currency, in violation of 18 U.S.C. §§ 871, 472, and 474. Moscrop and Khan contend that pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated their constitutional rights in making an upward adjustment under U.S.S.G. § 2B5.1(b)(2) for producing counterfeit federal reserve notes. Moscrop also contends that the district court erred in making the upward adjustment and in refusing to depart downward under U.S.S.G. § 2K2.20 for aberrant behavior. The appellants further contend that their cases should be remanded for resentencing because they were sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005), that the Sentencing Guidelines were effectively advisory. This contention has merit. The record does not show how the district court would have proceeded if it had 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).

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.