United States v. Olawale

138 F. App'x 999

Opinion

MEMORANDUM²

In United States v. Booker,—U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court struck down the federal sentencing guidelines to the extent that the Sentencing Reform Act of 1984 mandated the imposition of sentences predicated on facts not found by the jury or admitted by the defendant. Because Appellant actually preserved the sentencing error, and the district court handed down its sentence under the assumption that the guidelines were mandatory, we vacate the Appellant’s sentence in order that the district court can resentence Olawale in light of Booker and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). We add only that there was no Booker error arising from the district court’s original determination of Olawale’s criminal history calculation, under U.S.S.G. § 4A1.1. The determination that a defendant has suffered a prior conviction need not be proven to a jury. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Olawale’s two prior sentences were imposed in unrelated cases and were correctly counted separately by the district court, under U.S.S.G. § 4A1.2.

Accordingly, Olawale’s sentence is VACATED and the case is REMANDED for resentencing.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.