UNITED STATES of America, Plaintiff-Appellee, v. Anthony Edward GLASGOW, Defendant-Appellant, 155 F. App'x 314

MEMORANDUM Anthony Edward Glasgow appeals his 92-month sentence imposed following a jury-trial conviction for possession of more than 5 grams of cocaine base, in violation of 21 U.S.C. § 844. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reject appellant’s claim that the district court is limited by the maximum terms of imprisonment authorized by the unenhanced base offense levels, under ex post facto principles, as it is foreclosed by United States v. Dupas, 419 F.3d 916, 921 (9th Cir.2005) (holding that retroactive application of Booker remedial holding did not violate ex post facto clause).

However, because appellant was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand the sentence for further proceedings consistent with 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). REMANDED.

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.