Opinion
No. 08-50212.
The panel unanimously finds this case suitable for decision without oral argument and therefore denies appellant's request for oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 1, 2009.
Yesmin Elizabeth Saide, Esquire, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Robert L. Swain, Esquire, Law Offices of Robert L. Swain, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding. D.C. No. 3:00-cr-02580-NAJ.
Before: PAEZ, TALLMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Paul Yates appeals from the district court's decision, following a limited remand under United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), that it would not have imposed a different sentence had it known that the Sentencing Guidelines were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Yates contends that the district court erred when it stated that it was precluded from considering any evidence regarding his family situation or conduct that occurred during the period after his original sentencing hearing. Because the limited Ameline remand requires only that the district court determine what it would have done "at the time" of the original sentencing, the district court was not required to consider new evidence. See Ameline, 409 F.3d at 1083; see also United States v. Silva, 472 F.3d 683, 686 n. 4 (9th Cir. 2007).
Yates also contends that his sentence is unreasonable. We decline to review this contention because Yates failed to raise the issue in his initial appeal. See United States v. Thornton, 511 F.3d 1221, 1227-29 (9th Cir. 2008); United States v. Combs, 470 F.3d 1294, 1297 (9th Cir. 2006).
The government's motion, filed on January 29, 2009, is granted in part and the government's response has been considered.