Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 280.
Laurel J. Montoya, Esq., USF-Office of the U.S. Attorney, Fresno, CA, for Plaintiffs-Appellees.
Anthony Leon Johnson, FCITH-Federal Correctional Institution, Terre Haute, IN, pro se.
Francine Zepeda, FPDCA-Federal Public Defender's Office, Fresno, CA, for Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, District Judge, Presiding. D.C. No. CR-03-05053-AWI.
Before: HUG, O'SCANNLAIN, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Anthony Leon Johnson appeals the 262-month sentence imposed following his guilty-plea conviction for conspiracy, aiding and abetting, and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846 and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Johnson contends that the district court's application of the career offender enhancement under U.S. S.G. § 4B1.1 violates the Sixth Amendment as interpreted by Apprendi v. New Jersey and United States v. Booker and therefore exceeds the statutory maximum penalty because the increase was based on facts that were not alleged in the indictment and were not found by a jury beyond a reasonable doubt or specifically admitted to by plea. This contention is foreclosed by United States v. Von Brown, 417 F.3d 1077, 1078-79 (9th Cir.2005).
Because Johnson was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether any error in the imposition of the sentence under the then-mandatory Sentencing Guidelines was harmless, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005).
REMANDED.