Free Order - District Court of Arizona - Arizona

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Case 2:04-cr-00149-SMM Document 41 Filed 02/10/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Sergio Leyva-Solano, Defendant.

) Nos. CR-00-1015-PHX-SMM ) CR-04-0149-PHX-SMM ) ) ) ) ) ) ) ) ORDER ) )

In a December 12, 2005 decision, the Ninth Circuit Court of Appeals affirmed the judgment of this Court and remanded the sentence pursuant to United States v. Ameline, 409 F.3d 1973 (9th Cir. 2005) (en banc) (Ameline III). See United States v. Leyva-Solano, Nos. 04-10359 and 04-10362 (9th Cir. December 12, 2005). Specifically, the Court of Appeals determined that, "[b]ecause [Defendant] was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand to the sentencing court to answer that question." Id. at 2. In accordance with the procedure for remand set forth in Ameline III, 409 F.3d at 1084-85, IT IS HEREBY ORDERED that, no later than March 17, 2006, each party shall file a written brief setting forth their view as to whether the original sentence imposed would have been materially different if this Court had known at the time of sentencing that the Sentencing Guidelines were advisory. See id.

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IT IS FURTHER ORDERED that, if Defendant elects to waive his right to be resentenced in accordance with the procedures for remand set forth in Ameline III, defense counsel shall file and serve a notice and waiver of such right no later than March 7, 2006. DATED this 8th day of February, 2006.

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