United States v. Rushing

239 F. App'x 322

Opinion

MEMORANDUM

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Rick Rushing appeals from the judgment imposing a statutory fine following a remand in accordance with United, States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). We have jurisdiction under 28 U.S.C. § 1291. We review for reasonableness, see Ameline, 409 F.3d at 1085, and we affirm.

Rushing seeks to challenge, for the third time in as many appeals, the number of days he allegedly violated the Clean Water Act for purposes of calculating a fine under 33 U.S.C. § 1319(c)(2)(A). Our previous holding, that the district court properly computed the amount of the fine, is now the law of the case. See United States v. Technic Servs., 314 F.3d 1031, 1053 (9th Cir.2002) (affirming fine imposed against Rushing); Leslie Salt Co. v. United States, 55 F.3d 1388, 1392-93 (9th Cir.1995). Moreover, the district court complied with 18 U.S.C. §§ 3553 and 3572 by explaining that it would have imposed the same fine had it known at the time of the first sentencing hearing that the Sentencing Guidelines were merely advisory. See United States v. Eureka Labs., Inc., 103 F.3d 908, 913-14 (9th Cir. 1996). In view of the scope of the Ameline remand, and the record as a whole, we cannot say that the sentence is unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, — U.S. -, 126 S.Ct. 2314, 164 L.Ed.2d 832 (2006).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.