United States v. Parrish

134 F. App'x 183

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2005
• Docket: Nos. 03-50408, 03050410
• Status: Published

Opinion

MEMORANDUM

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1. Defendants waived their objection to venue by failing to raise it below. See United States v. Johnson, 297 F.3d 845, 861 (9th Cir.2002).

2. Col. Moran was “involved” in the offense within the meaning of U.S.S.G. § 2C1.7(b)(l)(B) (2003). Because Moran was an “official holding a high-level decision-making or sensitive position,” id., defendants’ eight-level sentence enhancement was proper. See United States v. Edwards, 188 F.3d 230, 238 (4th Cir.1999).

3. The judge, not the jury, determined that Col. Moran was an “official holding a high-level decision-making or sensitive position.” However, defendants did not raise a Sixth Amendment objection, see United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), below. Consistent with our recent en banc opinion in United States v. Ameline, 409 F.3d 1073, —-— (9th Cir.2005), we hold that a “limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at-.

4. The jury was properly instructed and had sufficient evidence to convict defendant Carlisle of aiding and abetting a violation of 41 U.S.C. § 423. See United States v. Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir.2004); United States v. Smith, 891 F.2d 703, 710-11 (9th Cir.1989).

AFFIRMED IN PART; REMANDED IN PART.

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.