Lomow

MEMORANDUM *

Defendant William Douglas Lomow appeals the sentence that he received on remand. We affirm.

1. Defendant’s main argument is that the district court misinterpreted our remand in the prior appeal, United States v. Lomow, 266 F.3d 1013 (9th Cir.2001). It did not.

*371 In the prior appeal, we held that the district court had correctly sentenced Defendant to 72 months on the money-laundering conviction, id. at 1018 ; turning to the conspiracy count, we noted that the statutory maximum sentence was 60 months, not 72 months, and therefore vacated his “sentence on that count” so the district court could correct this mistake, id. at 1022 . Again, in our summary, we stated that we were affirming the district court’s application of the guidelines to the money-laundering conviction but vacating “the sentence imposed on the conspiracy count.” Id. at 1023 . Our tag line vacated only “in part” and remanded for “resentencing in accordance with the above instructions.” Id. Accordingly, the district court properly limited its action to resentencing Defendant to the 60-month statutory maximum on the conspiracy count, to run concurrently with the 72-month sentence for money…

concurring.

I concur in the disposition but on a somewhat different analysis:

Any remand for resentencing, even if limited, must be understood to require the district court to devise a sentence for the conviction as a whole that is not in violation of the United States Sentencing Guidelines (the “Guidelines”). So, for example, if adjusting the erroneous sentence on one count required “regrouping” it with other counts upon resentencing to be proper under the Guidelines, the court on remand would have to regroup. Similarly, on remand the new sentence overall would have to comply with the “one-book” rule. See U.S.S.G. § lBl.ll(b)(2) (requiring application of the Guidelines Manual in effect on a particular date in its entirety).

In this instance, the district court erred when resentencing Lomow because it applied § 5K2.19 of the 2001 Guidelines, in violation of the ex post facto clause of the Constitution. See United States v. Ortland, 109 F.3d 539, 546 (9th Cir.1997) (holding that “when application of a version of the Guidelines enacted after the offense leads to a higher punishment than would application of the Guidelines in effect at the time of the offense, there is an ex post…