United States of America, Plaintiff-Appellee-Cross-Appellant v. Alvaro Plancarte-Alvarez, Defendant-Appellant-Cross-Appellee

ORDER AMENDING OPINION

ORDER

Alvaro Planearte-Alvarez has filed a petition for panel rehearing and petition for rehearing en banc. We issued an order on August 13, 2004 deferring decision on the petitions pending the Supreme Court’s decision in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105. Following issuance of the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), we issued an order on July 26, 2005 directing the parties to address the effect of the Booker decision on the present case.

Planearte-Alvarez contends that we should amend our opinion in United States v. Planearte-Alvarez, 366 F.3d 1058 (9th Cir.2004), to affirm the sentence without allowing the government to seek an increased sentence should he return to the United States. Planearte-Alvarez contends that in light of Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 , and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), the government’s claim with respect to error at his sentencing should now be reviewed for plain error, and that because the government cannot meet that standard, the sentence should be…