United States v. 2005-08-04 | 03-50098 | USA VLEUNG | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-50098
Plaintiff-Appellee, D.C. No.
v. CR-01-00492-  ABC-01DAVID CHI PING LEUNG,
Defendant-Appellant. ORDER

On Remand from the United States Supreme Court
Filed August 4, 2005
Before: Alfred T. Goodwin, Harry Pregerson, and
Richard C. Tallman, Circuit Judges.
ORDER
David Leung was convicted of possession with intent to
distribute methylenedioxy-methamphetamine (“Ecstacy”) in
violation of 21 U.S.C. § 841(a)(1), and was sentenced to a
term of imprisonment of 151 months. Leung appealed the
admission of expert testimony regarding unknowing couriers,
the admission of his post-arrest statements, the district court’s
refusal to give a “mere presence” instruction to the jury, the
sufficiency of the evidence, and the denial of a sentencing
adjustment. We affirmed Leung’s conviction and sentence in
a memorandum disposition. United States v. Leung, 95 Fed.
Appx. 876 (9th Cir. 2004). The Supreme Court vacated that
disposition and remanded to this court in light of United
States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L.Ed.2d
621 (2005). Leung v. United States, ___ U.S. ___, 125 S. Ct.
1046, 160 L.Ed.2d 992 (2005). We now reaffirm Leung’s
conviction for the reasons stated in our original disposition.
10025

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See Leung, 95 Fed. Appx. at 876. We grant a limited remand
to allow the district court to determine “whether the sentence
imposed would have been materially different had the district
court known that the sentencing guidelines were advisory.”
United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005)
(en banc).
REMANDED.
10026 UNITED STATES v. LEUNG

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