Opinion
No. 04-30211.
February 9, 2007.
Katherine Jill Bolton, Esq., USYA — Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellee.
K. Elizabeth Dahlstrom, Esq., FDWAID — Federal Defenders of Eastern Washington Idaho, Yakima, WA, for Defendant-Appellant.
On Remand from the United States Supreme Court. D.C. No. CR-03-06045-FVS.
Before: LEAVY, McKEOWN, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On December 3, 2004, we affirmed the district court's judgment in this appeal. The Supreme Court vacated and remanded our disposition for consideration in light of its subsequent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Ramos-Birrueta v. United States, 543 U.S. 1183, 125 S.Ct. 1427, 161 L.Ed.2d 185 (2005) (table).
We affirmed in our prior disposition the enhancement of appellant's sentence based on a conviction that was neither pled nor proved to a jury, relying on United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir. 2004), cert. denied, 543 U.S. 1130, 125 S.Ct. 1100, 160 L.Ed.2d 1085 (2005) (holding that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)), United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir. 2001) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule Almendarez-Torres).
We have recently reaffirmed this line of cases in light of the Supreme Court's subsequent decision in Booker. See United States v. Brown, 417 F.3d 1077, 1078-79 (9th Cir. 2005). Consequently, the judgment of the district court is again