UNITED STATES of America, Plaintiff-Appellee, v. James HAYS, Defendant-Appellant, 144 F. App'x 694

ORDER The Order of July 15, 2005 is withdrawn. The petition for rehearing is granted without further oral argument and the suggestion for rehearing en banc is denied. The Memorandum Disposition filed on July 2, 2004 is amended as follows: On page 3, the following is inserted between the third indented paragraph and the judgment: Finally, the defendant challenges his sentence. He argues that he must be resentenced because the district court erroneously based his sentence on facts found by a judge, not a jury, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

On October 7, 2004, we deferred decision on Hays’s challenge pending the Supreme Court’s resolution of United States v. Booker, — U.S. -—, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Consistent with this Circuit’s approach post-Booker, we agree that the district court should determine whether “the sentence imposed would have differed materially if the district court judge were applying the Guidelines as advisory rather than mandatory----” United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc).

Even though Hays has completed his prison term, his challenge is not moot because he has not yet completed his term of supervised release. United States v. Verdin, 243 F.3d 1174 (9th Cir.2001). We therefore remand the sentence for further proceedings consistent with Ameline and Booker. On remand, the district judge shall give the defendant an opportunity to opt out of resentencing if he is no longer interested in pursuing it. Ameline, 409 F.3d at 1084. On page 3, the last line is revised to read: CONVICTION AFFIRMED and SENTENCE REMANDED. The Honorable Donald P.

Lay, Senior United States Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation.