United States v. Sessions

113 F. App'x 218

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2004
• Docket: No. 04-30149
• Status: Published

Opinion

MEMORANDUM

**

Edward Dale Sessions, III, appeals the 51-month sentence imposed following his guilty plea to one count of identity theft in violation of 18 U.S.C. § 1028(a)(7).

Sessions contends that the district court erred by enhancing his sentence under U.S.S.G. § 2Bl.l(b)(3) for an offense involving a theft from the person of another. He contends that even in the absence of questions raised by Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 376 F.3d 967 (2004), the enhancement was not supported by a preponderance of the evidence. Sessions also contends that the district judge’s application of this enhancement, as well as enhancements based on amount of loss and specific offense characteristics, without proof to a jury beyond a reasonable doubt or an admission by Sessions, violated his Sixth Amendment rights under Blakely and Ameline.

Because the portion of Sessions’ sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we remand the case to the district court for whatever action it determines to be proper under the circumstances. United States v. Castro, 382 F.3d 927 (9th Cir.2004). Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004) (No. 04-104), and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, — U.S. -, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004) (No. 04-105), with or without granting bail to Sessions. Id.

REMANDED.

The mandate shall issue forthwith.

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.