Opinion
Argued and Submitted Oct. 18, 2005.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Lori Harper Suek, Esq., Office of the U.S. Attorney, Great Falls, MT, for Plaintiff-Appellee.
Kelly J. Varnes, Esq., Hendrickson, Everson, Noennig & Woodward, P.C., Billings, MT, Darla J. Mondou, Esq., Upton, MA, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Great Falls Division, Sam Haddon, District Judge, Presiding. D.C. No. CR-02-12-GF-SE H.
Before: CUDAHY, T.G. NELSON and MCKEOWN, Circuit Judges.
The Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation.
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.
Anthony Tiscareno appeals his sentence of 327 months, imposed following his conviction of conspiring to distribute methamphetamine, in violation of 21 U.S.C. § 846, and the finding by a sentencing jury that he was an organizer, leader, or manager, pursuant to U.S. S.G. § 3B1.1(b).
Tiscareno was sentenced under the then-mandatory Sentencing Guidelines. The district court imposed an alternative sentence in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, this alternative sentence was imposed under the statute of conviction and did not follow the sentencing prescription set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we cannot reliably determine whether the district court would have given Tiscareno a materially different sentence had it known the sentencing scheme outlined in Booker, we remand this case to the district court to answer this question, pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).
REMANDED.