Speelman

Jeffrey Speelman (“Mr. Speelman”) appeals from the district court’s sentencing decision. He contends that the district court erred in enhancing his sentence based on criminal conduct alleged in a charge dismissed pursuant to his plea bargain. He also maintains that the district court violated the Double Jeopardy Clause by applying an upward adjustment based on the age of the victim. The Government maintains that we cannot consider the merits of Mr. Speelman’s contentions because he waived his right to file a direct appeal in his plea agreement.

We reject the Government’s contention that Mr. Speelman expressly waived his right to file a direct appeal. We affirm the district court’s sentencing decision, however, because we conclude that the district court did not err in its interpretation of the Sentencing Guidelines. We remand in accordance with this court’s decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc) because the court imposed its sentence before the Supreme Court' instructed that the Sentencing Guidelines were not mandatory.

I

Mr. Speelman was indicted on November 21, 2002. He was charged with the Sexual Exploitation of Children, a Class A…