FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30263

Plaintiff-Appellee, D.C. No.

v. CR-02-00272-WFN  Eastern District ANTONIO FELICIANO CRAWFORD,

of Washington, Defendant-Appellant.

Spokane

ORDER 

Filed August 24, 2005

Before: Melvin Brunetti, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

ORDER

This case involves “extraordinary circumstances” sufficient

to justify our recall of the mandate, Calderon v. Thompson,

523 U.S. 538, 550 (1998); see also Nevius v. Sumner, 105

F.3d 453, 460-61 (9th Cir. 1996), because: (1) the sentencing

judge expressed explicit reservations on the record about the

sentence required under the previously mandatory Sentencing

Guidelines;1 and (2) the Supreme Court’s decision in Blakely

v. Washington, 542 U.S. 296 (2004), foreshadowing its holding in United States v. Booker, 125 S. Ct. 738 (2005), was

1The sentencing judge is on the record saying: “[T]his is the kind of

case that causes a court like myself a great deal of agony because the sentencing ranges are extraordinarily high. I was — you know, you are

always shocked to see these. Without the acceptance of responsibility,

there may have been a low end sentence calculated at 262 months. You

know, that is huge. . . . I mean, we are talking about serious consequences

. . . .” 

11283
rendered before the mandate issued.2

 Accordingly, we recall

the mandate, vacate the sentence, and remand to the district

court for resentencing pursuant to Booker, United States v.

Ameline, 409 F.3d 1073, 1078-85 (9th Cir. 2005) (en banc)

(requiring resentencing where sentence was enhanced by

extra-verdict findings under mandatory Guidelines if “possible to reliably determine from the record whether the sentence

imposed would have been materially different had the district

court known that the Guidelines were advisory”), and United

States v. Moreno-Hernandez, ___ F.3d ___, No. 03-30387

(9th Cir. August 17, 2005) (clarifying that relief under Booker

and Ameline is available to all pending direct criminal appeals

whether implicating the Sixth Amendment or just the nonconstitutional Booker error that the sentence was imposed under

guidelines believed to be mandatory). 

MANDATE RECALLED, SENTENCE VACATED and

REMANDED.

2Our decision in United States v. King, ___ F.3d ___, Nos. 99-10478,

01-10720 (9th Cir. August 16, 2005) (per curiam), where we addressed

Booker in denying the defendant’s motion to recall the mandate, is distinguishable because neither of the special circumstances that we highlight

in Crawford’s case were present in King. At the same time, however, in

stressing that our decision here rests on both the sentencing judge’s

expressed misgivings about the sentence required by the mandatory

Guidelines as well as the relative timing of the Supreme Court’s Blakely

decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled. Rather future panels will necessarily evaluate the

existence of “extraordinary circumstances” warranting the recall of a mandate based on the facts of their individual cases. 

11284 UNITED STATES v. CRAWFORD

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