United States of America, Plaintiff-appellee, v. Dianne Marie August, Defendant-appellant, 41 F.3d 1514 (9th Cir. 1994)

MEMORANDUM^** 

Appellant Dianne Marie August appeals her jury conviction for multiple counts of conspiracy, possession, distribution, attempted manufacture and manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), 846 and 18 U.S.C. § 2 and use of a firearm in a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1), (2). We affirm the conviction and remand for resentencing.

August first challenges the sufficiency of the affidavit supporting the search warrant, based on lack of corroboration of the information offered by a confidential informant. This claim is foreclosed by our decision in the companion case, United States v. Badaracco, No. 93-30028 (Feb. 10, 1994) (memorandum disposition). Therefore, we affirm the warrant's validity pursuant to the "good faith" exception established in United States v. Leon, 468 U.S. 897 (1984).

The United States has joined Appellant's motion to remand for resentencing, which is also before this court. We agree to permit incorporation of the Opening Brief in the case of United States v. Badaracco, supra, in support of that motion. In accordance with our holding in Badaracco, we remand for resentencing so that the trial court may reconsider the offense severity level under the Sentencing Guidelines using the correct calculation of lab capacity.

The judgment of the district court is therefore

AFFIRMED in part and VACATED and REMANDED in part.