Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Kris A. McLean, Esq., USMI-Office of the U.S. Attorney, Missoula, MT, for Plaintiff-Appellee.
John P. Rhodes, Esq., David C. Avery, Esq., FDMT-Federal Defenders of Montana, Missoula, MT, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. CR-04-00021-DWM.
Before: HAWKINS, MCKEOWN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
David E. Burgert, Jr., appeals from his 87-month sentence imposed after pleading guilty to conspiracy to possess illegal firearms, possession of a machine gun, and two counts of felon in possession of a firearm, in violation of 18 U.S.C. §§ 371, 922(o), 924(a)(2), 922(g)(1), and 924(a)(2), respectively. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand for resentencing.
We reject Bergert's contention that inclusion of several statements in his pre-sentence report violated his due process rights. See United States v. Robertson, 901 F.2d 733, 735 (9th Cir.1990). However, because Burgert was sentenced under the then-mandatory Sentencing Guidelines, we remand for the district court to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, 419 F.3d 906, 916 (9th Cir.2005) (extending Ameline' s limited remand procedure to cases involving non-constitutional United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), error).
REMANDED.