McElwee

MEMORANDUM *

The Supreme Court vacated our judgment entered December 17, 2004, and remanded for further consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

Stephen McElwee appealed from his sentence imposed following his guilty plea conviction for transporting visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252 (a)(1) and possession of one or more matters containing depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2256 . McElwee *984 contends that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) authorized this court’s review of the district court’s denial of his motion for a downward departure.

McElwee was sentenced before the Supreme Court held that the Sentencing Guidelines were effectively advisory. See United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764 , 160 L.Ed.2d 621 (2005). The discretionary denial of a downward departure under the pre-Booker mandatory Guidelines is unreviewable. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (per curiam). Nonetheless, the…