United States v. Njos

412 F. App'x 906

Opinion

Order

The sentence imposed following our remand of December 30, 2009, exceeds the Guideline range calculated by the district judge. Relying on 18 U.S.C. § 3742(g)(2), defendant contends that the sentence therefore is invalid. In Pepper v. United States, — U.S. -, 131 S.Ct. 1229, 1243-46, 179 L.Ed.2d 196 (2011), the Supreme Court concluded that § 3742(g)(2) violates the Constitution by setting limits on district judges’ sentencing discretion in the absence of findings made by a jury (or the judge in a bench trial), or a defendant’s waiver of his rights under the sixth amendment. This statute therefore is not a basis to upset the sentence that the district judge concluded is appropriate here. Because defendant does not contend that his sentence is unreasonable, apart from his reliance on § 3742(g)(2), the judgment of the district court is

Affirmed.