United States v. Manuel Florez

FILED NOT FOR PUBLICATION MAR 26 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-30376 Plaintiff - Appellee, D.C. No. 1:99-cr-00048-JDS v. MEMORANDUM * MANUEL FLOREZ, AKA Manuel Flores, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding Submitted March 16, 2010 ** Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges. Manuel Florez appeals from the 180-month sentence imposed following a jury-trial conviction for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. The instant appeal follows a successful 28 U.S.C. § 2255 motion * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). AK/Research allowing Florez to file an appeal out of time. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the sentence and remand to the district court. Florez contends that there is a reasonable probability that he would have received a different sentence, had the district court known that the Sentencing Guidelines were advisory. The government concedes, and we agree, that a limited remand is appropriate. Accordingly, we remand to the district court for further proceedings in light of United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en banc). Florez’s request for supplemental briefing is denied. VACATED and REMANDED. AK/Research 2 08-30376