*1 agree therefore with pleaded guilty America, that he
Mayweather’s claim UNITED STATES a mistaken belief as to his sentenc- Plaintiff-Appellee, “demonstrably false.” exposure is v. Ill RIVERA-GOMEZ, Defendant Uriel Mayweather’s claim that As for Appellant. assistance, ineffective provided Barnwell challenges to the effectiveness we review No. 08-10480. “(1) only where appeal counsel on direct sufficiently devel appeal Appeals, the record on Court of issue, permit determination oped Ninth Circuit. (2) representation is so legal where the 2010. Argued Submitted Feb. existing
inadequate record] [based obviously a defendant his it denies Dec. Filed 2010. right to counsel.” Unit Amendment Sixth Benford, 574 F.3d ed States v. Amended Feb. 2011. (9th Cir.2009) (quoting States v. United Jeronimo, Cir.
2005)). present Neither circumstance is
here.
Mayweather’s claim of ineffective assis- obviously overlaps proffered
tance with his withdrawing guilty plea.
reasons his
However, only May- we have held at knowledge
weather’s of those reasons plea with- plea precludes
the time of his developed is not as to
drawal. The record gave Mayweather, Barnwell
what advice suppression Barnwell did not file a
why
motion, happened would have what result, done so. As a we cannot
had he did,
meaningfully assess “what counsel done, what,
why any, preju- it was if Benford, at 1231
dice resulted.”
Jeronimo,
(quoting
Therefore, Mayweather’s we decline invita- adequacy
tion to review the constitutional representation, prej-
of Barnwell’s without right explicitly preserved to his
udice — plea agreement his seek collateral re- —to lief under 28 U.S.C.
AFFIRMED. *2 GOODWIN, ALFRED
Before: T. MARSHA S. BERZON and SANDRA S. IKUTA, Judges. Circuit ORDER opinion The filed on December published at 626 F.3d is amend- ed as follows.
The text in appearing page footnote 9 on replaced 1136 should be deleted and with following language: Though the concurrence observes that may the district court’s error have been harmless, the district court has not made findings regarding Rivera-Go- mez’s intent or potential up- calculated adjustments victim, ward relating to role, justice. and obstruction of See Lococo, United States v. (9th Cir.2008). Moreover,
865-66 there nothing suggest the record to equiva- would reach an lent or more severe sentence on remand. Ankeny, United States v. Cir.2007). Because we say any degree cannot with of confi- dence that the district court’s error was harmless, we remand for resentencing. Having basis, remanded on this we need not reach arguments Broderick, Defender, Daniel J. Federal regarding other alleged sentencing er- Beevers, Douglas J. Assistant Federal rors. Defender, Fresno, CA, for the defendant- Additionally, appearing the concurrence appellant Rivera-Gomez. pages replaced 1136-37 is deleted and Brown, Lawrence G. United States At- by the concurrence attached this order. torney, and Ian L. Garriques, Assistant Fresno, CA, Attorney, As the petitions deadline for for rehear- plaintiff-appellee the rehearing United States. en passed, banc has no in January 2001. Sometime rehearing deported en rehearing or petitions thereafter, illegal- Rivera-Gomez returned entertained. will be banc States, July and in ly to the United IT ORDERED. IS SO *3 of misdemeanors for he was convicted intent to terrorize making a threat with OPINION battery. and for IKUTA, Judge: Circuit 2005, police In officers March Visalia sentencing calculating In the defendant’s drug use investigating reports were Sentencing Guide- the U.S. range under in a front of certain residence individuals lines, the defen- court counted they shotgun noticed a modified when convic- resisting state arrest prior dant’s approached a vehicle. officers side When history, see of his criminal part tion as Rivera-Gomez, among who was those 4A1.1, part than as of the offense rather house, in front of the Rivera- standing conviction, see his crime of level for one of them aside and fled pushed Gomez a district court should § 2L1.2.1 Because in into the residence. Officers followed conviction as prior for a state account pursuit, but Rivera-Gomez was able to calculation where that the offense level escape attempting after to strike them. that occurred in was for conduct conviction later, officers located Rivera- Two weeks attempt “to of the defendant’s the course Again, at his home. Rivera-Gomez Gomez for the responsibility” or avoid detection attempted escape, by kicking to this time a lB1.3(a)(l)(A), conviction, § we crime of drywall hanging from through hole and re- the defendant’s sentence vacate rafters, ceiling but officers were even- resentencing. mand tually to restrain and arrest him after able a
deploying gas tear and Taser. I in Rivera-Gomez was convicted citizen, arrest, Rivera-Gomez, felony resisting the state a Mexican court of Uriel years three in state in States for which he served legal status the United gained release, May in Directly in before his amnesty program prison. the late through an government charged the federal Riv- subsequently convicted of 1980s. He was being deported alien July in In era-Gomez with attempted murder illegal in after found the United States driving convicted for he was 1326(a) in reentry, violation of 8 U.S.C. of alcohol. As a result these influence (b)(2).2 convictions, pleaded guilty and was Rivera-Gomez legal he lost his status section, (b) Subject any to subsection of this court shall "[t]he 1. The Guidelines state Guidelines Manual in effect on use the alien who— sentenced,” admission, excluded, is (1) date that defendant has been denied 1.11(a), unless use of that Manual IB departed the deported, or removed or has post the ex clause of the "would violate exclusion, facto States while an order of United Constitution,” 1B1.11(b)(1). outstanding, deportation, or removal post in this there is no ex facto issue Because case, and thereafter edition of the Guide- we use the 2007 enters, enter, (2) any attempts is at Manual, which was in effect on October lines States, in, the United ... time found sen- at the time of Rivera-Gomez's imprisoned Title shall be fined under tencing. years, not more than or both. (b) reentry penalties of certain Criminal part: § 1326 states in relevant 2. 8 U.S.C. removed aliens (a) general States).3 objected charge maining to the but to the district the United lBl.l(a). Guidelines, application court’s be- the court had included his cause The Guidelines next direct the court to resisting state sentence for arrest as “[djetermine the base offense level and of the criminal calculation. The apply appropriate specific offense objection, district court denied his and Riv- characteristics, references, spe- cross timely appealed. era-Gomez cial particular instructions contained in the
guideline Chapter Two the order lBl.l(b). case, listed.” In this II *4 2L1.2(a) § guideline provides single a base To assist in explaining eight points offense level of for violations objection sentencing to the district court’s §of and sets forth “Specific Offense calculation, we set forth a brief of overview require Characteristics” that procedure that a district court must court to increase the offense level if the apply to range determine the Guidelines’ previously deported defendant was or un- § for a 1326 conviction. sentencing When lawfully remained in the United States conviction, § a for a defendant a dis- being specified after convicted of felonies.4 trict court must calculate both the number (Relevant Conduct) Section IB 1.3 explains points of associated with the defendant’s that the district court is to determine the offense level and the points number of specific offense characteristics on the basis associated with the defendant’s criminal of whether they are “acts and omissions history. provides Section 1B1.1 step-by- committed, aided, abetted, counseled, com- step process. instructions for this manded, The induced, procured willfully or district court must first determine the cor- by caused the defendant ... that occurred guideline rect offense applicable section to during the commission of the offense of conviction, the offense of conviction, which in this case in preparation offense, §is 2L1.2 (Unlawfully Entering or Re- or attempting in the course to avoid of (a) Notwithstanding months; subsection imposed of this sec- sentence exceeded 13 tion, (ii) violence; any (iii) in the case of alien described in a crime of a firearms offense; (iv) offense; pornography such subsection— a child (v) security a national or terrorism of- fense; (vi) offense; (2) trafficking a human subsequent whose removal was to a (vii) offense, smuggling or an alien in- conviction aggra- for commission of an levels; by crease felony, vated such alien shall be fined (B) felony drug a title, conviction for a traf- imprisoned under such not more ficking offense for which the sentence years, than 20 or both less, imposed was 13 months or increase levels; by 12 (C) 2L1.2, aggravated felony, a conviction for an Unlawfully Entering 3. Section or Re- levels; by increase States, maining in the United states fol- (D) any felony, a conviction for other lowing: levels; by 4 crease or (a) Base Offense Level: 8 (E) three or more convictions for misde- (b) Specific Offense Characteristic meanors that are of crimes violence or (1) Apply the Greatest: offenses, drug trafficking increase previously deported, If the defendant levels. unlawfully or remained in the United States, after— 4. Section 2L1.2 does not set forth cross (A) (i) felony a conviction for a that is a any applicable special references or instruc- drug trafficking offense for which the tions. “prior The term sentence” defined responsibility detection of- added). 4A1.2(a) lB1.3(a)(l)(A) “any previ- to mean sentence (emphasis fense.” upon adjudication guilt, of ously imposed special level and offense Once base trial, plea by guilty plea, whether determined, the are characteristics offense contendere, not nolo for conduct up- applicable must calculate district 4A1.2(a) (second the instant offense.” including relating those adjustments, ward added). commentary The to this emphasis justice. victim, role, and obstruction “conduct section of the Guidelines defines lBl.l(c). here, Potentially relevant §See to mean that is of the instant offense” adjustment may impose upward an a court “conduct that is relevant conduct to officer, see government if the victim was a provisions instant offense under the 3A1.2(a), if defendant assaulted Conduct).” (Relevant § 1B1.3 4A1.2 “in a cre- officer manner law enforcement n.l. cmt. bodily of serious ating a substantial risk 3A1.2(c)(l), or if the defen-
injury,” see sum, when a defendant has received a risk “recklessly created a substantial dant the district court must de- *5 injury to another bodily or serious of death prior termine whether to take the sentence fleeing from a law in the of person course into account in either the base offense officer,” Finally, §see 3C1.2. enforcement history calculation or the criminal level any appli- calculate court must so, calculation. To do the district court adjustment for the defen- downward cable must determine whether the conduct un- See acceptance responsibility. of dant’s derlying prior sentence is relevant to lBl.l(e). § conviction, the crime of as defined in lB1.3(a)(l)(A). underly- § If has calculated the conduct After the district court level, prior the sentence constitutes relevant offense it must determine conviction, criminal to then it history category pur- conduct the crime of defendant’s lBl.l(f). 4(A). in the offense level calcu- Chapter must be included suant to (i.e., it by adding this calculation lation is accounted for as The court makes characteristics), specific sentence offense and cannot qualifying prior for each points history §in in the criminal calcúla- according to the instructions 4A1.1.5 be included 4A1.1, le) History Category, points Add 2 if the defendant committed 5. Section Criminal provides: years two after the instant offense less than (a) (£) through imprisonment points release from on a sentence The total from items (a) (b) history category impris- determine the criminal counted under or or while in Five, Sentencing Chapter Part Table in escape or status on such a sen- onment A. (d), points tence. If 2 are added for item (a) points prior Add 3 each sentence of only point item. add 1 for this exceeding year one imprisonment one (f) point prior 1 for each sentence re- Add month. sulting from a conviction of a crime of (b) points prior Add 2 for each sentence of any points violence that did not receive imprisonment sixty days of at least not (b), (a), (c) or above because such (a). counted in sentence, single was counted as a sentence (c) point prior Add 1 for each sentence not up points a total for this item. to (b), (a) up to a total of counted adjustments allow to be made The Guidelines points for this item. offender, a career see if a defendant is (d) points the defendant committed Add if 4B1.1, adjustments applica- are but no such while under crimi- the instant offense ble in this case. including probation, justice nal release, supervised imprisonment, parole, release, escape work status. characteristics,” if in a crimi- tion even the conduct resulted fense nal 4A1.2 cmt. n.l. conviction.6 See On points creased the offense level sixteen hand, if underlying the other the conduct because Rivera-Gomez reentered prior sentence is not relevant to the country being after convicted of attempted conviction, prior crime of then the sen- murder, which is crime of violence. See tence must included as be 2L1.2(b)(l)(A)(ii). The district court did criminal history defendant’s score. See any upward adjustments not make for vic- § 4A1.1. The interlocking definitions of tim, role, justice, or obstruction of see relevant conduct and sentence ensure lBl.l(c), but reduced Rivera-Gomez’s “that history a defendant’s criminal not points by offense level two applying a by counting overstated” the same conduct adjustment downward acceptance in the offense level calculation again 3El.l(a). responsibility. §See history the criminal calculation. United respect With to the criminal cal- v. Cruz-Gramajo, States culation, the district court determined that (9th Cir.2009). Rivera-Gomez had a total of twelve crimi- history points, nal including points three Ill for his conviction. now apply We the framework de above, As noted argued Rivera-Gomez scribed above to juris this case. We have the state resisting-arrest conviction diction pursuant 18 U.S.C. 3742. We could not be included in the criminal histo- interpretation review the district court’s ry calculation, because he resisted arrest novo, the Guidelines de findings its of fact *6 with the intent of avoiding detection for his error, for clear and application its of the illegal crime of reentry. The district court Guidelines to the facts of this case for rejected argument, this holding that the abuse of discretion. Cruz-Gramajo, 570 resisting-arrest conduct must be consid- at In considering F.3d 1167. a district ered separately from the illegal reentry application court’s of the Guidelines to un resisting offense because arrest “creates facts, disputed we review the district court an exceedingly dangerous situation that deferentially, acknowledging that “the dis really compounds aggravates the na- trict court is in a position better than the ture the crimes that initially were appellate court to decide whether a partic investigation.” Relying on a Fifth Circuit ular set of individual circumstances” meets case, Vargas-Garcia, United States v. 434 criteria, the Guidelines’ v. United Buford (5th Cir.2005), F.3d 345 the district court States, 59, 64, 532 U.S. 121 S.Ct. concluded that the resisting-arrest (2001), L.Ed.2d 197 understanding properly offense was part included as “the limited value of ap uniform court of criminal history, and that peals precedent” regarding such “fact- Rivera-Gomez’s intent in resisting arrest issues, bound” legal id. at 121 S.Ct. was irrelevant. 1276. Rivera-Gomez,
In sentencing the disagree dis- We with the district court’s trict assigned eight court points for Riv- reasoning. plain Under the language of Guidelines, era-Gomez’s base offense level. See United States v. Valenzue- 2L1.2(a). la, § After considering “special Cir.2007), of- 2L1.2, exceptions principle. There are to this For tics under and still be counted as example, prior may part convictions be history. considered of criminal 2L1.2 cmt. determining special in offense characteris- n.6. being to a offense for found guilty “in the course of occurred conduct that responsi- detection or in the United States after his 1987 and attempting to avoid consti- crime of conviction bility” deportations. for the Id. conduct, and it should relevant
tutes criminal calculating In in of- specific included therefore be sentence, the alien’s lB1.3(a)(l)(A). fense characteristics. history points cluded criminal for the two Moreover, underlying the if the conduct conviction, on the state false-information con- constitutes relevant state conviction ground underlying the conduct duct, “prior it considered a then cannot be conviction was not of the 1326 of- calculating purposes sentence” fense. Id. The Eleventh Circuit deter- § 4A1.2 cmt. n.l. history points. criminal erred, the district court had mined resisting-arrest Although Rivera-Gomez’s circumstances,” many that “in an noting reentry after the long conduct occurred police alien’s false statement to the “could nothing in the Guide- place, took offense an constitute action taken to avoid detec- ceases to be establishes that conduct lines being tion” for the offense of found in the time. specified period after a relevant 1326(a), in violation of Therefore, ar- if Rivera-Gomez resisted same offense for which Rivera-Gomez was to “avoid detection or re- rest in order convicted. at 1320.7 Because the rec- Id. illegal reentry offense sponsibility” for the gave ord that the alien a false established (as claims), there is no other he now responsibility to avoid detection or name holding that the basis for offense, reentry for his the court vacated conduct to the offense is not relevant the alien’s sentence and remanded for re- conviction, crime of at sentencing. Id. 1320-21. as a accounting for the conduct erred rather than as Cruz-Gramajo, opinion Neither our offense level. govern- relied ment, reasoning nor the Fifth Circuit’s conclusion, join the reaching this we Vargas-Garcia, 434 F.3d the case on directly ad- only other circuit that has *7 relied, which the district court are con- States v. dressed this issue. See United trary resisting- to our that a conclusion (11th White, 1314, 1319-20 Cir. 335 F.3d can relevant conduct for arrest offense be 2003). White, drug an on In alien arrested reentry § a offense. Both of these 1326 gave a false name and identifica- charges a whether cases addressed different issue: police. the state Id. at 1315-16. tion to by all crimes committed an alien from the his true identi- After the state discovered of reentry time of the unlawful to the time sentenced ty, the alien was convicted and reentry §a 1326 committing arrest for police to a giving false information conduct, constitute relevant offense Immediately at 1316. after officer. Id. crimi- therefore must be excluded from the state he the alien received his in history explained nal calculation.8 As subsequently pleaded charged convincing government ... if the had and the alien in White be 7. Both Rivera-Gomez U.S.,” entering id. at dicted White of the charged "being with found” in the Unit- were that issue is not before us here. order, deportation a in viola- ed States after 1326(a). F.3d at 1316 n. 1 tion of See 335 Although in one of the defendants Cruz- 1326(a)). Although White ob- (quoting Gramajo law for was convicted under state government’s argument the served that during stop, evading police a officer a traffic were unrelated and arose the alien’s offenses at an that is similar to offense courses of action "would from two different offense, resisting-arrest Rivera-Gomez’s state 514 offense, “since his illegal reentry was based on for the
Cruz-Gramajo,
theory
this
(1) a violation of
arrest
the com
following syllogism:
resisting
during
occurred
the
continuing offense
“is considered a
in
attempting
1326
of or
the course of
mission
illegal
extends
the moment of
from
responsibility
for his
avoid detection
reentry
discovery
immigration
until
of-
reentry.”
court
illegal
Id. at 347. The
did
ficials,”
(citing
570
at
United
F.3d
1168
resisting
the question
not address
whether
Reyes-Pacheco,
v.
F.3d
States
responsibili
“to
arrest
avoid detection or
(2)
Cir.2001));
explanation
the
of rele-
ty”
reentry
the crime of
consti
illegal
con-
conduct in
IB 1.3 includes
vant
relevant
conduct
under
tutes
“that
commission
during
duct
occurred
the
lB1.3(a)(l)(A),
solely
but rather focused
conviction,”
(emphasis
id.
of the offense
argument.
on
continuing
the alien’s
offense
(3)
omitted);
therefore,
the defendants’
this
court
rejecting
argument,
the
rea
“intervening state offenses occurred ‘dur-
reentry
although illegal
soned that
is a
their
a
ing’
temporal
1326 offenses as
offense,
continuing
and ex
“the concealed
matter,
relationship
and this
temporal
tended nature of this offense cannot shield
to deem the state offenses ‘rele-
sufficient
of unlaw
multiple
‘severable instances
conduct,’
the
thereby precluding
vant
dis-
from
appropriate
ful conduct’
their
conse
court
considering
trict
from
the convictions
at
quences
sentencing.”
(quot
Id. at 349
history
calcula-
part
as
their criminal
v.
Banashefski,
United States
(footnote omitted).
Id. at
tion.”
1168-69
(10th Cir.1991)).
Further,
rejected
argument
We
this
based
resisting-arrest
court concluded that
conclusion that
did
on our
the Guidelines
was separable
illegal
offense
from the
contemplate that
not
the defendants’
reentry
offense because the
offense
for in the
convictions would be accounted
was “based
‘different criminal conduct
offense
Guidelines’ calculation of the
level
”
that harmed different societal interests.’
§ 2L1.2.
See id. at 1172-74. Ac-
(quoting
Id. at 350
v. Bed
cordingly, the
court’s decision to
district
(6th Cir.1992)).
dow,
F.2d
crimi-
include
state convictions
Accordingly, the Fifth
Circuit held
nal
calculations was consistent with
counting
district
did not err in
policy goals
avoiding
the Guidelines’
ei-
alien’s
offense as
understating
overstating
ther
a defen-
history.
his criminal
Id. at 352.
history.
dant’s criminal
Id.
case,
In this
Rivera-Gomez does not
Fifth
The
Circuit reached
similar con-
continuing
theory,
raise the
offense
and so
Vargas-Garcia,
clusion
the "district 1168-69. in not considering argument cluded] from convictions consider Rivera-Gomez’s the [state] of [a as criminal state offense was committed to avoid detec- defendant's] the calculation” when the state offenses were tion for 1326 offense. judicial inefficiency calculation, appeal this and the the because in the Guidelines’ for in the offense in the review of some sen- accounted now inherent can be conduct if the district example, For tencing appeals. level. underlying the conduct determines point, As an initial Rivera-Gomez’s conviction resisting-arrest supported is original sentence for the to avoid detection intended
was Guidelines, even if his conviction for re- offense, would district court reentry completely removed from sisting arrest is level deter- the offense have to recalculate crimi- Dropping the three the calculation. above, and, could consid- as noted mination added for that history points originally nal adjustment under upward an imposing er conviction, Rivera-Gomez’s total criminal (victim 3A1.2(a) offi- government a nine, sup- history points would be which (defendant 3A1.2(e)(l) assaulted a cer), § history category a criminal of IV. ports “in a manner cre- officer law enforcement bodily U.S.S.G., (Sentencing Part A of serious Ch. a risk ating substantial (defendant “recklessly Table). injury”), original 3C1.2 In combination with the death or seri- risk of created a substantial twenty-two re- offense level —which in person bodily injury to another ous adjustments for his upward flected no a law enforcement fleeing from course resisting arrest —these calcula- conduct officer”). support a custodial sentence be- tions sixty-three seventy-eight tween
IV Ac- months under the Guidelines. Id. the district court erred Because original sen- cordingly, Rivera-Gomez’s re Rivera-Gomez’s state determining that seventy-seven months was within tence of could not be “rele conviction sisting-arrest Guidelines, adjustments even with no lB1.3(a)(l)(A) as a vant conduct” conviction. made for his law, in even if Rivera-Gomez matter of could possible It responsibili to “avoid detection tended Rivera-Gomez towards low- sentence offense, make reentry it did not ty” for his range it did end of this new Guidelines Rivera-Go finding regarding a factual —as higher Nor is his initial calculation—result- resisting arrest. under its mez’s intent Consequent seventy-seven from the record. intent clear in a new sentence below sentence and vacate Rivera-Gomez’s ly, likely, we how- It would seem more months. proceed the district court for remand to ever, will face a that on remand defendant opinion.9 with this ings consistent range, po- which could higher Guidelines longer in a sentence than tentially result REMANDED. VACATED First, it imposed. seems the one first GOODWIN, concurring: Judge, Circuit that there will be at least fairly obvious adjustment of the of- upward three-level in the in the result and concur I concur 3A1.2(a), as the victim fense under folly out the only point I opinion. write equivalent or more severe reach an would Though observes the concurrence *9 harmless, States v. remand. See United may sentence on have been court’s error district Cir.2007). (9th Ankeny, F.3d 841 findings 502 re- court has not made the district any degree say with of we cannot calculated Because garding intent or Rivera-Gomez’s error was that the district court’s relating confidence upward adjustments to vic- potential harmless, resentencing. role, Hav- tim, we remand for justice. See and obstruction basis, Lococo, we need not this remanded on 865-66 v. 514 F.3d arguments regarding Moreover, Cir.2008). nothing (9th reach there is sentencing alleged errors. other suggest to the record govern- judicial conduct was sake of efficiency good com- adjusted sense, ment officer. This offense level mon it seems to me that the proce- twenty-five would result in a Guidelines dural error trigger Carty needs to be range of 84 to 105 months. Two additional refashioned to admit the harmless error adjustments upward possible. are also standard of Williams. 3A1.2(c)(l)
§§ If all 3C1.2. three of made, adjustments
these are Rivera-Go- thirty-
mez’s offense level could reach
three, resulting in range a Guidelines Accordingly,
188 to 235 months. re- appeal”
sult of this “successful could well
be Rivera-Gomez’s sentence increas-
es, potentially as much as tripling.
Despite this, all knowing we are unable
under current Ninth precedent Circuit to
affirm the originally given by sentence
district court and dispense with this Carty,
case. U.S. v.
(9th Cir.2008) (en banc), this Court held
remand necessary significant pro- error,
cedural which includes incorrect
calculation of the sentencing range. instructed,
The Supreme Court has how
ever, that remand for resentencing must
pass a harmless error test. Williams v.
U.S., (1992). “[Rjemand 593 U.S. appropriate unless the reviewing court
concludes, whole, on the record as a harmless, i.e.,
the error was that the error
did not affect the district court’s selection imposed.” sentence Id. Williams See, good Smith,
remains law. e.g., v.U.S. Cir.2009). Manda
tory remand for even a harmless mistake
in calculating the Guidelines makes even
less sense now that the Guidelines are
purely advisory. See United v. States
Booker, 220, 244-45, 259-60, 543 U.S. 738, 160 (2005).
S.Ct. L.Ed.2d 621 government
As the is not seeking a
higher this court easily could
conclude that the error in determining
sentencing range here was harmless. It sadly
would be ironic for Rivera-Gomez to appeal
win his given and then be a longer
sentence, possibly much longer. For the
517-523 opinion of the Note: The Editor’s Ninth Appeals, States Court
United Astrue,
Circuit, publish- in McLeod v. at this cita- in the advance sheet
ed withdrawn
tion, it was because the bound volume
from grant superseded
amended superseding part. For
rehearing see 2011WL
opinion, 1886355._