Ellsworth

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10365 Plaintiff-Appellee, v.  D.C. No.

CR-04-00035-LRH

ROBERT DEAN ELLSWORTH,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted April 6, 2006—San Francisco, California

Filed August 9, 2006

Before: Alfred T. Goodwin, Betty Binns Fletcher and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

9201 9204 UNITED STATES v. ELLSWORTH

COUNSEL

Cynthia S. Hahn, Assistant Federal Public Defender, Reno, Nevada, for the defendant-appellant.

Robert Don Gifford, Assistant United States Attorney, Reno, Nevada, for the plaintiff-appellee.

OPINION

FISHER, Circuit Judge:

Robert Dean Ellsworth was convicted of robbery and first degree murder and sentenced to life imprisonment with the possibility of parole by a Nevada state court in 1988. He was paroled after serving 16 years. One year and one day after his release, he was arrested while in the possession of a loaded nine millimeter semiautomatic…