Combs

Facts

Defendant was sentenced during the interregnum between Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), and the tortured pos- ture of his case illustrates the difficulties the courts of appeals have faced in reviewing such sentences. Defendant was con- victed on four counts relating to his involvement in a metham- phetamine operation and sentenced to 168 months, a sentence at the low end of the Guidelines range. He appealed on the UNITED STATES v. COMBS 19517 sole ground that the district court erred in denying his motion to suppress certain evidence. We affirmed in an opinion filed the day before Booker was handed down. See United States v. Combs, 394 F.3d 739 (9th Cir. 2005). Defendant petitioned for rehearing, claiming Booker error because the district judge had acted under the misapprehension that the Guidelines were mandatory rather than advisory. Because defendant had not raised a sentencing claim below, this belated claim could be reviewed—if at all—only for plain error. We therefore amended our opinion to include a remand to the district court for a determination of whether the error was prejudicial, as…