United States v. 2005-08-24 | 03-30263 | USA VCRAWFORD | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-30263
Plaintiff-Appellee, D.C. No.
v. CR-02-00272-WFN
Eastern District  ANTONIO FELICIANO CRAWFORD, of Washington,Defendant-Appellant. Spokane
ORDER

Filed August 24, 2005
Before: Melvin Brunetti, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
ORDER
This case involves “extraordinary circumstances” sufficient
to justify our recall of the mandate, Calderon v. Thompson,
523 U.S. 538, 550 (1998); see also Nevius v. Sumner, 105
F.3d 453, 460-61 (9th Cir. 1996), because: (1) the sentencing
judge expressed explicit reservations on the record about the
sentence required under the previously mandatory Sentencing
Guidelines;1 and (2) the Supreme Court’s decision in Blakely
v. Washington, 542 U.S. 296 (2004), foreshadowing its hold-
ing in United States v. Booker, 125 S. Ct. 738 (2005), was
1The sentencing judge is on the record saying: “[T]his is the kind of
case that causes a court like myself a great deal of agony because the sen-
tencing ranges are extraordinarily high. I was — you know, you are
always shocked to see these. Without the acceptance of responsibility,
there may have been a low end sentence calculated at 262 months. You
know, that is huge. . . . I mean, we are talking about serious consequences
. . . .”
11283

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rendered before the mandate issued.2 Accordingly, we recall
the mandate, vacate the sentence, and remand to the district
court for resentencing pursuant to Booker, United States v.
Ameline, 409 F.3d 1073, 1078-85 (9th Cir. 2005) (en banc)
(requiring resentencing where sentence was enhanced by
extra-verdict findings under mandatory Guidelines if “possi-
ble to reliably determine from the record whether the sentence
imposed would have been materially different had the district
court known that the Guidelines were advisory”), and United
States v. Moreno-Hernandez, ___ F.3d ___, No. 03-30387
(9th Cir. August 17, 2005) (clarifying that relief under Booker
and Ameline is available to all pending direct criminal appeals
whether implicating the Sixth Amendment or just the noncon-
stitutional Booker error that the sentence was imposed under
guidelines believed to be mandatory).
MANDATE RECALLED, SENTENCE VACATED and
REMANDED.
2Our decision in United States v. King, ___ F.3d ___, Nos. 99-10478,
01-10720 (9th Cir. August 16, 2005) (per curiam), where we addressed
Booker in denying the defendant’s motion to recall the mandate, is distin-
guishable because neither of the special circumstances that we highlight
in Crawford’s case were present in King. At the same time, however, in
stressing that our decision here rests on both the sentencing judge’s
expressed misgivings about the sentence required by the mandatory
Guidelines as well as the relative timing of the Supreme Court’s Blakely
decision and the termination of our appellate jurisdiction, we do not sug-
gest that these same elements must always be present in order for a man-
date to be recalled. Rather future panels will necessarily evaluate the
existence of “extraordinary circumstances” warranting the recall of a man-
date based on the facts of their individual cases.
11284 UNITED STATES v. CRAWFORD

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