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NOT FOR PUBLICATION.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 678.
U.S. Attorney, USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Michael J. McCabe, Esq., Law Offices of Michael McCabe, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California. Judith N. Keep, District Judge, Presiding. D.C. No. CR-03-01516-JNK.
Before: REINHARDT, RYMER, and HAWKINS, 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.
Marcos Corona Varela appeals his 151-month sentence imposed following a guilty-plea conviction for possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
We remand to the sentencing court 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, 2005 WL 1964483 at *8 (9th Cir. Aug.17, 2005) (extending the Ameline remand to cases involving non-constitutional Booker error). Further, because the district court did not have the benefit of this Court's decisions in United States v. Kelly, 2005 WL 2127766 at *6-7 (9th Cir. Sept.6, 2005), and Penuliar v. Ashcroft, 395 F.3d 1037, 1042-44 (9th Cir.2005), we instruct the district court to consider them upon remand.
Appellant's May 27, 2005 motion for judicial notice is denied.
REMANDED.