United States Court of Appeals, Ninth CircuitJan 24, 2008
265 Fed. Appx. 578 (9th Cir. 2008)

No. 07-50048.

Submitted January 14, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed January 24, 2008.

Lawrence S. Middleton, Esq., Michael J. Raphael, Esq., Office of the U.S. Attorney, Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.

Jonathan D. Libby, Esq., Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. CR-04-00426-RGK.

Before: HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Jose Luis Rodriguez-Gonzalez appeals from the district court's decision, following a limited remand under United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc), that it would not have imposed a different sentence had it known that the Sentencing Guidelines were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Rodriguez-Gonzalez contends that the district court erred by failing to give him the opportunity to submit new evidence on remand and by failing to provide an explanation for its determination that it would not have imposed a materially different sentence had it known the Guidelines were advisory. Both arguments are foreclosed by United States v. Combs, 470 F.3d 1294, 1296-97 (9th Cir. 2006).

Rodriguez-Gonzalez' argument that the district court erred by re-sentencing him without a hearing is foreclosed by United States v. Silva, 472 F.3d 683, 686 (9th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 201, 169 L.Ed.2d 135 (2007).