United States v. Varela

144 F. App'x 677

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2005
• Docket: No. 04-50308
• Status: Published

Opinion

MEMORANDUM

**

Marcos Corona Varela appeals his 151-month sentence imposed following a guilty-plea conviction for possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We remand to the sentencing court to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 2005 WL 1964483 at *8 (9th Cir. Aug.17, 2005) (extending the Ameline remand to cases involving non-constitutional Booker error). Further, because the district court did not have the benefit of this Court’s decisions in United States v. Kelly, 2005 WL 2127766 at *6-7 (9th Cir. Sept.6, 2005), and Penuliar v. Ashcroft, 395 F.3d 1037, 1042-44 (9th Cir. 2005), we instruct the district court to consider them upon remand.¹

REMANDED.

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.

1 . Appellant’s May 27, 2005 motion for judicial notice is denied.