Opinion
This 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NOT FOR PUBLICATION.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 130.
Mary L. Grad, AUSA, USSAC--Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Victor S. Haltom, Esq., Sacramento, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CR-01-00471-GEB.
Before: HAWKINS, MCKEOWN and CLIFTON, 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 Ninth Circuit Rule 36-3.
Defendant Kenny Ly Kaing appeals the sentence imposed by the district court. The sentence was imposed under the Sentencing Guidelines based on facts that were not admitted by Defendant or determined by a jury beyond a reasonable doubt.
After the district court imposed Defendant's sentence, the Supreme Court held that in order to avoid a violation of a defendant's Sixth Amendment rights by the imposition of mandatory sentence enhancements based on judge-found facts, the Sentencing Guidelines were advisory, not mandatory. United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Consequently, we remand Defendant's sentence so the district court can determine "whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory." United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc). The district court should follow the procedures outlined in Ameline. See id. at 1084-85.
SENTENCE REMANDED.