United States v. 2005-08-16 | 99-10470 | USA VKING | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, Nos. 99-10478
Plaintiff-Appellee, 01-10720
v. D.C. No.
CR-95-00197-VRWNORMAN ANTHONY KING, aka Norm  Northern DistrictKing; aka Norman August Klause, of California,Defendant-Appellant. San Francisco
ORDER

Filed August 16, 2005
Before: Susan P. Graber, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.
ORDER
In this case, we affirmed the judgment of conviction on
December 23, 2002. The mandate issued on March 11, 2003.
The Supreme Court denied certiorari on June 2, 2003. On
August 9, 2004, defendant-appellant King filed a pro se
motion “requesting amendment to [the] mandate and remand
for resentencing” in light of the Supreme Court’s decision in
United States v. Booker, 125 S.Ct. 738 (2005). We construe
this motion as a motion to recall the mandate, and deny it.
We will recall a mandate only “in extraordinary circum-
stances.” Calderon v. Thompson, 523 U.S. 538, 550 (1998)
(power to recall mandate is “one of last resort, to be held in
reserve against grave, unforeseen contingencies”). See also
Nevius v. Sumner, 105 F.3d 453, 460-61 (9th Cir. 1996). The
circumstances here do not qualify as such. Although the
10683

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Supreme Court has invalidated the mandatory Sentencing
Guidelines under which King was sentenced, the remedy put
in place allows sentencing judges to continue to apply the
Guidelines, albeit under a new discretionary regime in which
other factors are relevant. Booker, 125 S.Ct. at 764-68; 18
U.S.C. § 3553(a). At best, defendant would be entitled to a
limited remand at which his sentencing judge could determine
whether or not to resentence. See United States v. Ameline,
409 F.3d 1073, 1084-85 (9th Cir. 2005).
We therefore conclude that the “extraordinary circum-
stances” necessary to justify recalling a mandate are not pres-
ent here.
The motion filed August 9, 2004, is denied.
10684 UNITED STATES v. KING

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