United States v. Mulifai

136 F. App'x 963

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2005
• Docket: No. 04-30253
• Status: Published

Opinion

MEMORANDUM

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Alfred Mulifai appeals his sentence imposed following his guilty plea to felon in possession of a firearm and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(g)(1) & (k) and 924(a)(2) & (a)(1)(B). He contends that in imposing a sentence pursuant to a mandatory guidelines scheme, the district court plainly erred by making non-jury findings supporting an upward adjustment under U.S.S.G. § 2K2.1(b)(5) for using the firearm in an assault. The record does not show how the district court would have proceeded had it known that the Sentencing Guidelines were advisory rather than 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. See United States v. Ameline, 409 F.3d 1073, 1085 (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.