Feldman

United States v. Feldman

Good Law
151 F. App'x 521
United States Court of Appeals for the Ninth CircuitOctober 3, 2005Nos. 04-50163, 04-50553California607 words

Opinion

Lead Opinion

MEMORANDUM *

Appellant Feldman was convicted of mail fraud. He now appeals the district court’s denial of his motion to modify the conditions of his supervised release to permit him to return to Spain. The facts are known to the parties and are not recounted here.

Feldman is not entitled to a remand for resentencing under United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). All of the facts that the district court considered in sentencing Feldman were admitted by him in his plea agreement; therefore, there were no judge-found facts and Booker does not apply. On appeal, Feldman only challenges the imposition, duration, and conditions of his supervised release. These were all discretionary determinations by the district court, which was clear in stating that it felt it had chosen the appropriate punishment. Therefore, there is no “reasonable probability that [Feldman] would have received a different sentence had the district judge known that the sentencing guidelines were advisory,” and Feldman is not entitled to a remand for resentencing. Ameline, 409 F.3d at 1078 .

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