
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph F.M. VENTURA, Defendant-Appellant.
    No. 00-10158.
    D.C. No. CR-97-05233-REC.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Sept. 12, 2001.
    Decided Oct. 11, 2001.
    
      Before REINHARDT, HAWKINS, and RAWLINSON, Circuit Judges.
   MEMORANDUM

The government concedes the district court’s error in applying a statute not in effect at the time of the offenses of which Ventura was convicted, but argues that he waived this issue by not preserving it in his first appeal. Ventura’s resentencing on remand from that appeal, however, was a new proceeding and, as the government acknowledged at argument, the district court was free to decline to enter a restitution award. Ventura was not required to anticipate that the district court might fail to apply the proper statute and his counsel adequately preserved the position that restitution should be subject to the terms of the prior version of the statute.

VACATED and 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 Ninth Circuit Rule 36-3.
     