When a non-retroactive amendment to the United States Sentencing Guidelines takes effect after a defendant is sentenced but while his direct appeal is pending, may a remand for resentencing be ordered to permit the district court to consider the amendment under its discretionary sentencing authority, as the First, Sixth, and Eighth Circuits permit, but the Fifth, Seventh, Ninth, and Tenth Circuits prohibit?

QUESTION PRESENTED When a non-retroactive amendment to the United States Sentencing Guidelines takes effect after a defendant is sentenced but while his direct appeal is pending, may a remand for resentencing be ordered to permit the district court to consider the amendment under its discretionary sentencing authority, as the First, Sixth, and Eighth Circuits permit, but the Fifth, Seventh, Ninth, and Tenth Circuits prohibit? 1