Leyva-Franco

MEMORANDUM **

The government again appeals the district court’s four-level departure for aberrant behavior in sentencing Oscar Guadalupe Leyva-Franco. See United States v. Leyva-Franco, 311 F.3d 1194 (9th Cir. 2002). We must reverse and remand again for resentencing, as the court failed to make the threshold finding required by U.S.S.G. § 5K2.20 (2002) that this is an “extraordinary case.”

At the outset, the parties disagree about whether our review is de novo pursuant to § 401(d)(2) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, 670 (2003), or for abuse of discretion under Koon v. United States, 518 U.S. 81, 98-100 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). However, we recently decided that the PROTECT Act applies to appeals that were pending on the date the Act became law. United States v. Phillips, 87 Fed.Appx. 650, 02-30046 , 2004 U.S.App. LEXIS 1253, at *33 (9th Cir. 2004) (‘We conclude that the new standard of review must be applied in any case decided by this court subsequent to the PROTECT Act’s effective date of April 30, 2003.”). Therefore, we review under a de novo…