United States v. Bates

MEMORANDUM ** Herbert A. Bates appeals from the district court's decision following 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 materially different sentence had it known that the Guidelines were advisory. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Bates contends that his sentence is improperly multiplicitous, and that his sentence should be rectified on appeal, rather than in a subsequent 28 U.S.C. § 2255 proceeding. We are not persuaded. Under the law of the case doctrine, we decline to reexamine this Court’s prior conclusion in United States v. Smith, 424 F.3d 992, 999-1003 (9th Cir.2005), that Bates faded to demonstrate plain error. See Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.2002). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.