Opinion
No. 04-30511.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 15, 2007.
Kent S. Robinson, AUSA, Jonathan Haub, AUSA, Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellant.
Lawrence Matasar, Esq., Portland, OR, for Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon, James A. Redden, District Judge, Presiding. D.C. No. CR-03-00407-JAR.
Before: LEAVY, RYMER, and T.G. NELSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The United States appeals from the sentence imposed on Bassam E. Kassab following his guilty-plea conviction for intentionally possessing and distributing pseudoephedrine in violation of 21 U.S.C. § 841(c)(2). We have jurisdiction under 28 U.S.C. § 1291.
We vacate and remand for resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker requires remand where a district court did not believe it had discretion to sentence a defendant above the drug quantity to which he stipulated in his plea agreement. See id. at 267, 125 S.Ct. 738 (remanding Fanfan's case for resentencing because, relying upon Blakely v. Washington, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004), the district court had erroneously imposed a sentence based solely upon the guilty verdict in the case); see also United States v. Ruiz-Alonso, 397 F.3d 815, 819 (9th Cir. 2005) (remanding under similar circumstances).
Because we cannot say that the district judge would have imposed the same sentence in the absence of the mandatory Guidelines, we vacate the sentence and remand for resentencing in a manner consistent with Booker. See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir. 2005).