United States v. Johansson

MEMORANDUM** Katoni Johansson appeals his 41-month sentence imposed following his conviction by jury trial for one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of use of a communications facility to facilitate a conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 843. He contends, and the government concedes, that his Sixth Amendment rights under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 376 F.3d 967 (9th Cir.2004), were violated when he was sentenced based on the district judge’s finding that 49.6 grams of methamphetamine were involved in the offenses, rather than the jury’s finding that the conspiracy involved less than 5 grams of methamphetamine. Because the portion of Johansson’s sentence that is clearly unaffected by Blakely and Ameline has expired, we remand the case to the district court for whatever action it determines to be proper under the circumstances. See United States v. Castro, 382 F.3d 927, 928 (9th Cir.2004) (per curiam). Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, — U.S.-, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and United States v. Fanfan, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, ■— U.S. -, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004), with or without granting bail to Johansson. See Castro, 382 F.3d at 928. REMANDED. The mandate shall issue forthwith. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.