United States v. Matthew Eugene Dupas

Defendant Matthew Eugene Dupas appeals the sentence imposed after his conviction for possessing stolen mail in violation of 18 U.S.C. § 1708 . The government concedes that Defendant’s sentence of imprisonment may be remanded to the district court pursuant to our decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), because that sentence rested on the district court’s finding of fact as to the amount of loss and was imposed according to the then-mandatory United States Sentencing Guidelines. Here, we address two other challenges to Defendant’s sentence, both of which present issues of first impression in this circuit. Both issues are raised for the first time on appeal, so we review only for plain error. See id. at 1078 (reviewing the defendant’s Sixth Amendment challenge for plain error); United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003) (reviewing a challenge to conditions of supervised release for plain error), cert. denied, — U.S. -, 125 S.Ct. 32 , 160 L.Ed.2d 32 (2004).

First, Defendant argues that the retro-activity principles of the Fifth Amendment’s Due Process Clause preclude the retroactive application of the remedial holding of United…