United States v. Kassab

MEMORANDUM ** The United States appeals from the sentence imposed on Bassam E. Kassab following his guilty-plea conviction for intentionally possessing and distributing pseudoephedrine in violation of 21 U.S.C. § 841 (c)(2). We have jurisdiction under 28 U.S.C. § 1291 . We vacate and remand for resentencing pursuant to United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Booker requires remand where a district court did not believe it had discretion to sentence a defendant above the drug quantity to which he stipulated in his plea agreement. See id. at 267 , 125 S.Ct. 738 (remanding Fanfan’s case for resen-tencing because, relying upon Blakely v. Washington, 542 U.S. 961 , 125 S.Ct. 21 , 159 L.Ed.2d 851 (2004), the district court had erroneously imposed a sentence based solely upon the guilty verdict in the case); see also United States v. Ruiz-Alonso, 397 F.3d 815, 819 (9th Cir.2005) (remanding under similar circumstances). Because we cannot say that the district judge would have imposed the same sentence in the absence of the mandatory *652 Guidelines, we vacate the sentence and remand for resentencing in a manner consistent with Booker. See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005). VACATE and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.