U.S. v. Mitchell

Full title: UNITED STATES of America, Plaintiff-Appellee, v. David M. MITCHELL…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 16, 2001

7 F. App'x 802 (9th Cir. 2001)

Opinion

7 Fed.Appx. 802 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. David M. MITCHELL, Defendant-Appellant. No. 99-10438. D.C. No. CR-98-63-MLS. United States Court of Appeals, Ninth Circuit. April 16, 2001

Argued and Submitted April 10, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Eastern District of California, Milton L. Schwartz, District Judge, Presiding.

Before REINHARDT, TASHIMA, and BERZON, Circuit Judges.

ORDER

This is a sentencing appeal. Resolution of the primary issue raised ¹ may be governed by United States v. Silver, 245 F.3d 1075 (9^th Cir.2001), a case which was not decided until after the sentence was imposed in this case. We therefore VACATE the sentence and REMAND the case to the district court for resentencing after holding an evidentiary hearing or such other proceedings as may be required in light of Silver.

1 The other issue raised by this appeal also is based on a case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), not decided until after the sentence was imposed in this case. If defendant wishes to continue to pursue this point in light of subsequent case law, see, e.g., United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9^th Cir.2000), he should raise it again in the district court.