United States v. 2006-06-05 | 03-50062 | USA VPLANCARTE-ALVAREZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, Nos. 03-50062
Plaintiff-Appellee- 03-50121
Cross-Appellant, D.C. No.
v. CR-02-02017-1-IEG 
ALVARO PLANCARTE-ALVAREZ, ORDER
Defendant-Appellant-Cross- AMENDING
Appellee. OPINION

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzales, District Judge, Presiding
Argued February 6, 2004
Submitted May 11, 2004
Pasadena, California
Filed June 6, 2006
Before: James R. Browning, David R. Thompson, and
Kim McLane Wardlaw, Circuit Judges.
COUNSEL
Benjamin L. Coleman and Gerald Singleton, San Diego, Cali-
fornia, for the defendant-appellant-cross-appellee.
David P. Curnow, Assistant United States Attorney, Criminal
Division, San Diego, California, for the plaintiff-appellee-
cross-appellant.
6193

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ORDER
Alvaro Plancarte-Alvarez has filed a petition for panel
rehearing and petition for rehearing en banc. We issued an
order on August 13, 2004 deferring decision on the petitions
pending the Supreme Court’s decision in United States v.
Booker, No. 04-104, and United States v. Fanfan, No. 04-105.
Following issuance of the Supreme Court’s opinion in United
States v. Booker, 543 U.S. 220 (2005), we issued an order on
July 26, 2005 directing the parties to address the effect of the
Booker decision on the present case.
Plancarte-Alvarez contends that we should amend our opin-
ion in United States v. Plancarte-Alvarez, 366 F.3d 1058 (9th
Cir. 2004), to affirm the sentence without allowing the gov-
ernment to seek an increased sentence should he return to the
United States. Plancarte-Alvarez contends that in light of
Booker, 543 U.S. 220, and United States v. Ameline, 409 F.3d
1073 (9th Cir. 2005) (en banc), the government’s claim with
respect to error at his sentencing should now be reviewed for
plain error, and that because the government cannot meet that
standard, the sentence should be affirmed. This contention
fails because our conclusion that resentencing is appropriate
to remedy the district court’s error at sentencing remains
intact despite the intervening changes in sentencing law
brought about by Booker and Ameline. Although Booker
changed the nature of that error, resentencing remains appro-
priate. See United States v. Ruiz, 536 U.S. 622, 627 (2002).
If we determine in any future appeal that the sentence even-
tually imposed upon Plancarte-Alvarez resulted from an
incorrect application of the Sentencing Guidelines, and further
that the error in application was not harmless, we will remand
to the district court for further sentencing proceedings just as
we would have under the pre-Booker sentencing regime.
United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.
2006).
6194 UNITED STATES v. PLANCARTE-ALVAREZ

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Our opinion included a de novo review of the government’s
claim that the district court misapplied the holding of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and we deter-
mined that the court had erred. Because of that error, we held
that should Plancarte-Alvarez return to the United States, the
government could apply to the district court to vacate the sen-
tence and determine if the March 19, 2002 incident qualifies
as relevant conduct under U.S.S.G. § 1B1.3. To correct our
opinion to make it consistent with Booker, we strike in full the
first full paragraph in the right-hand column of 366 F.3d at
1065 and replace that paragraph with the following:
If the March 19 incident qualifies as relevant con-
duct under the Guidelines, a question yet to be deter-
mined by the district court, the weight of that load of
marijuana should be considered in determining the
base offense level for Plancarte-Alvarez’s jury con-
victions for the May 28 acts of importing marijuana
in violation of 21 U.S.C. §§ 952 and 960, and pos-
session of marijuana with intent to distribute in vio-
lation of 21 U.S.C. § 841(a)(1).
We reject Plancarte-Alvarez’s suggestion that he is entitled
to opt out of any potential vacatur and resentencing. The Ame-
line opinion describes an opt-out procedure for limited
remands, the purpose of which is to allow the district court to
answer the question of whether it would have imposed the
same sentence had it known that the Guidelines were not
mandatory. 409 F.3d at 1084. However, there is no general
opt-out procedure for resentencing outside the limited Ame-
line framework, and neither party has requested Ameline
relief.
The panel has voted to deny the petition for panel rehear-
ing.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. See Fed. R. App. P. 35.
6195 UNITED STATES v. PLANCARTE-ALVAREZ

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The petition for panel rehearing and the petition for rehear-
ing en banc are denied. No further petitions for panel rehear-
ing or for rehearing en banc may be filed.
IT IS SO ORDERED.
6196 UNITED STATES v. PLANCARTE-ALVAREZ

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