FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  Nos. 03-50062

Plaintiff-Appellee- 03-50121

Cross-Appellant, D.C. No.

v.  CR-02-02017-1-IEG

ALVARO PLANCARTE-ALVAREZ, ORDER

Defendant-Appellant-Cross- AMENDING

Appellee. OPINION 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzales, District Judge, Presiding

Argued February 6, 2004

Submitted May 11, 2004

Pasadena, California

Filed June 6, 2006

Before: James R. Browning, David R. Thompson, and

Kim McLane Wardlaw, Circuit Judges.

COUNSEL

Benjamin L. Coleman and Gerald Singleton, San Diego, California, for the defendant-appellant-cross-appellee. 

David P. Curnow, Assistant United States Attorney, Criminal

Division, San Diego, California, for the plaintiff-appelleecross-appellant. 

6193
ORDER

Alvaro Plancarte-Alvarez has filed a petition for panel

rehearing and petition for rehearing en banc. We issued an

order on August 13, 2004 deferring decision on the petitions

pending the Supreme Court’s decision in United States v.

Booker, No. 04-104, and United States v. Fanfan, No. 04-105.

Following issuance of the Supreme Court’s opinion in United

States v. Booker, 543 U.S. 220 (2005), we issued an order on

July 26, 2005 directing the parties to address the effect of the

Booker decision on the present case. 

Plancarte-Alvarez contends that we should amend our opinion in United States v. Plancarte-Alvarez, 366 F.3d 1058 (9th

Cir. 2004), to affirm the sentence without allowing the government to seek an increased sentence should he return to the

United States. Plancarte-Alvarez contends that in light of

Booker, 543 U.S. 220, and United States v. Ameline, 409 F.3d

1073 (9th Cir. 2005) (en banc), the government’s claim with

respect to error at his sentencing should now be reviewed for

plain error, and that because the government cannot meet that

standard, the sentence should be affirmed. This contention

fails because our conclusion that resentencing is appropriate

to remedy the district court’s error at sentencing remains

intact despite the intervening changes in sentencing law

brought about by Booker and Ameline. Although Booker

changed the nature of that error, resentencing remains appropriate. See United States v. Ruiz, 536 U.S. 622, 627 (2002).

If we determine in any future appeal that the sentence eventually imposed upon Plancarte-Alvarez resulted from an

incorrect application of the Sentencing Guidelines, and further

that the error in application was not harmless, we will remand

to the district court for further sentencing proceedings just as

we would have under the pre-Booker sentencing regime.

United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.

2006). 

6194 UNITED STATES v. PLANCARTE-ALVAREZ
Our opinion included a de novo review of the government’s

claim that the district court misapplied the holding of

Apprendi v. New Jersey, 530 U.S. 466 (2000), and we determined that the court had erred. Because of that error, we held

that should Plancarte-Alvarez return to the United States, the

government could apply to the district court to vacate the sentence and determine if the March 19, 2002 incident qualifies

as relevant conduct under U.S.S.G. § 1B1.3. To correct our

opinion to make it consistent with Booker, we strike in full the

first full paragraph in the right-hand column of 366 F.3d at

1065 and replace that paragraph with the following: 

If the March 19 incident qualifies as relevant conduct under the Guidelines, a question yet to be determined by the district court, the weight of that load of

marijuana should be considered in determining the

base offense level for Plancarte-Alvarez’s jury convictions for the May 28 acts of importing marijuana

in violation of 21 U.S.C. §§ 952 and 960, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). 

We reject Plancarte-Alvarez’s suggestion that he is entitled

to opt out of any potential vacatur and resentencing. The Ameline opinion describes an opt-out procedure for limited

remands, the purpose of which is to allow the district court to

answer the question of whether it would have imposed the

same sentence had it known that the Guidelines were not

mandatory. 409 F.3d at 1084. However, there is no general

opt-out procedure for resentencing outside the limited Ameline framework, and neither party has requested Ameline

relief. 

The panel has voted to deny the petition for panel rehearing. 

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. See Fed. R. App. P. 35. 

UNITED STATES v. PLANCARTE-ALVAREZ 6195
The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for panel rehearing or for rehearing en banc may be filed. 

IT IS SO ORDERED. 

6196 UNITED STATES v. PLANCARTE-ALVAREZ



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