The Second and the Ninth Circuit have addressed this issue and reached similar conclusions, although they employ slightly different remand procedures. See United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005); United States v. Garcia, 413 F.3d 201 (2d Cir. 2005). Similar to the decision we reach today, the Ninth Circuit held that a full remand for a resentencing hearing, rather than its standard limited remand, was appropriate in a case where the district court judge had retired while the case was on appeal.
Where a defendant does not object to jury instructions at trial, this court reviews for plain error. United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005). The defendant must show there is "(1) error, (2) that is plain, and (3) that affects substantial rights," and "(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."
Accordingly, there is no plain error. See United States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005). Murphy next contends that the district court procedurally erred at sentencing by failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) to deviate from the Sentencing Guidelines based on policy differences with the Guidelines.
Therefore, we review these instructions for plain error. United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005) (citation omitted). To show plain error, Williams must prove that there is: "(1) error, (2) that is plain, and (3) that affect[s] substantial rights.
Because this issue was not raised at trial, we review for plain error. United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir.2005). Ordinarily, the "general unanimity instruction suffices to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict."
Because we conclude that the search of the package was lawful under the extended border search doctrine, we affirm the conviction. Pursuant to United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc), United States v. Moreno-Hernandez, 419 F.3d 906, 916(9th Cir. 2005), cert. denied, S.Ct., ___ U.S. ___, 126 S.Ct. 636, ___ L.Ed.2d ___, 2005 WL 2922683 (2005), and United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005), we vacate the sentence and remand to the district court for a new sentencing hearing. BACKGROUND
On appeal, Allen maintains that there was insufficient evidence to support his firearm conviction; that the admission of a co-conspirator's statement violated his Sixth Amendment right of confrontation; that a government witness's allusion to Allen's previous incarceration warranted a mistrial; that the district court failed to appreciate that it had discretion to depart downward on Allen's sentence based on a tragic personal history and the disproportionate impact of a prior conviction; and that the enhancement of his sentence using judge-found facts violated the Sixth Amendment. We affirm the convictions and, because the sentencing judge is no longer available, we order a remand for resentencing pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), and United States v. Sanders, 421 F.3d 1044, 1052 (9th Cir. 2005). I BACKGROUND
Defendant contends that because in this case the Crosby remand was conducted by a successor judge rather than the trial judge who sentenced him originally, resentencing is required by federal law, specifically in light of United States v Sanders, 421 F.3d 1044 (CA 9, 2005) and United States v Bonner, 440 F.3d 414 (CA 7, 2006). This issue was addressed by this Court in People v Howard, 323 Mich.App. 239, 247-253; 916 N.W.2d 654 (2018), in relevant part:
1. When, as here, the defendant did not object to a jury instruction at trial, we review the instruction for plain error. United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005). Thus, Archuleta must show "(1) an error (2) that is plain, (3) that affects 'substantial rights,' and (4) that 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.'"
2. Defendant did not object to the jury instructions before the district court, so plain error review applies. United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005).