United States of America, Plaintiff-appellee, v. David Chi Ping Leung, Defendant-appellant, 418 F.3d 1003 (9th Cir. 2005)

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U.S. Court of Appeals for the Ninth Circuit - 418 F.3d 1003 (9th Cir. 2005)

August 4, 2005

Kim I. Meyer, Esq., Daniel D. Rubinstein, Esq., Office of the U.S. Attorney, Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.

Phillip I. Bronson, Esq., Law Offices of Phillip I. Bronson, Encino, CA, for Defendant-Appellant.

David Chi Ping Leung, Los Angeles, CA, pro se.

On Remand from the United States Supreme Court. D.C. No. CR-01-00492-ABC-01.

Before GOODWIN, PREGERSON, and TALLMAN, Circuit Judges.


David Leung was convicted of possession with intent to distribute methylenedioxy-methamphetamine ("Ecstacy") in violation of 21 U.S.C. § 841(a) (1), and was sentenced to a term of imprisonment of 151 months. Leung appealed the admission of expert testimony regarding unknowing couriers, the admission of his post-arrest statements, the district court's refusal to give a "mere presence" instruction to the jury, the sufficiency of the evidence, and the denial of a sentencing adjustment. We affirmed Leung's conviction and sentence in a memorandum disposition. United States v. Leung, 95 Fed.Appx. 876 (9th Cir. 2004). The Supreme Court vacated that disposition and remanded to this court in light of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Leung v. United States, ___ U.S. ___, 125 S. Ct. 1046, 160 L. Ed. 2d 992 (2005). We now reaffirm Leung's conviction for the reasons stated in our original disposition. See Leung, 95 Fed.Appx. at 876. We grant a limited remand to allow the district court to determine "whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory." United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc).