Opinion
No. 06-10464.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 18, 2008.
Samantha S. Spangler, Esq., 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, Morrison C. England, District Judge, Presiding. D.C. No. CR-00-00229-MCE.
Before: HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Herbert A. Bates appeals from the district court's decision following limited remand under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc), that it would not have imposed a materially different sentence had it known that the Guidelines were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bates contends that his sentence is improperly multiplicitous, and that his sentence should be rectified on appeal, rather than in a subsequent 28 U.S.C. § 2255 proceeding. We are not persuaded. Under the law of the case doctrine, we decline to reexamine this Court's prior conclusion in United States v. Smith, 424 F.3d 992, 999-1003 (9th Cir. 2005), that Bates failed to demonstrate plain error. See Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002).