UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 10th day of January, two thousand and five.

Present: ROSEMARY S. POOLER, SONIA SOTOMAYOR, RICHARD C. WESLEY, Circuit Judges, UNITED STATES OF AMERICA, Appellee, -v- (01-1398(L), 01-1580(Con))

HECTOR BARRIENTOS, Defendant-Appellant.

Appearing for Appellant: Marc S. Berman, Clifton, NJ.

Appearing for Appellee: Brian E. Spears, Assistant United States Attorney, District of Connecticut.

Appeal from the United States District Court for the District of Connecticut (Burns, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

On February 27, 2004, we issued an order affirming the convictions of each of Hector Barrientos's co-defendants and dismissing certain of Barrientos's arguments. However, we remanded to the district court for further factual findings relevant to an obstruction-of-justice enhancement to Barrientos's offense level. We retained jurisdiction pursuant to United States v.

Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). We now have received the district court's factual findings as well as supplemental briefing from the parties. We hold that the district court's findings are not clearly erroneous and that they include all the findings necessary for an obstruction-of-justice enhancement. See United States v. Ben-Shimon, 249 F.3d 98, 102-04 (2d Cir. 2001).

Barrientos also argues that his sentence should be vacated pursuant to Blakely v.

Washington, 124 S. Ct. 2531 (2004). This argument lacks merit. See United States v. Mincey, 380 F.3d 102 (2d Cir. 2004) (per curiam). However, the mandate in this case will be held pending the Supreme Court's decision in United States v. Booker, U.S. , 2004 WL 1713654 (Aug. 2, 2004) (mem.) (accepting certiorari), and United States v. Fanfan, U.S. , 2004 WL 1713655 (Aug. 2, 2004) (mem.) (accepting certiorari). Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court's decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its order that address defendant's sentence until after the Supreme Court's decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court's decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

For the reasons we have discussed, we affirm the judgment of the district court.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk By: