Dominguez

MEMORANDUM **

Martin Dominguez appeals from the sentence the district court imposed upon him for conspiracy to distribute cocaine. 21 U.S.C. § 846 . We vacate and remand.

Dominguez asserts that the district court committed procedural error when it resentenced him after we vacated a prior sentence and remanded. See United States v. Dominguez, 151 Fed.Appx. 500, 500-01 (9th Cir.2005) (Dominguez I). We agree.

We review sentencing in a two step process in which we ask: (1) was there significant procedural error, and, if not, (2) was the sentence substantively reasonable. See Gall v. United States, — U.S. —, —, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).

Here, the sentencing founders on the first step. No doubt, that is because the district court was of the opinion that the case was remanded pursuant to our decision in United States v. Ameline, 409 F.3d 1073, 1074, 1084-85 (9th Cir.2005) (en banc). In that the district court erred. We expressly vacated the sentence and remanded for resentencing under Booker. Dominguez I, 151 Fed.Appx. at 501 .

The unfortunate result is that the district court did not calculate…