                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2006

USA v. Cumberbatch
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3587




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"USA v. Cumberbatch" (2006). 2006 Decisions. Paper 1402.
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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 04-3587


                          UNITED STATES OF AMERICA,

                                        v.

                           MAURICE CUMBERBATCH,

                                    Appellant.




                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                              (D.C. No. 03-cr-00269-1)
                    District Judge: Honorable Sylvia H. Rambo




                    Submitted Under Third Circuit LAR 34.1(a)
                               November 8, 2005

              Before: ROTH, FUENTES, and GARTH, Circuit Judges.

                              (Filed: March 22, 2006)

                            _______________________

                            OPINION OF THE COURT
                            _______________________

FUENTES, Circuit Judge.



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       Appellant Maurice Cumberbatch’s response to this Court’s Order dated March 1,

2005, regarding the applicability of United States v. Booker, 543 U.S. 220 (2005),

requests that this Court “remand his case for reconsideration of sentence in light of the

discretion now allowed under United States v. Booker.” Pursuant to said Order, such a

statement is to be “construed as waiving any issues related to the conviction.” We

therefore address only the sentencing issue.

       Cumberbatch pled guilty to Count II (possession of a firearm in furtherance of

drug trafficking, in violation of 18 U.S.C. 924(c)) and Count III (possession of a firearm

by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1)) of a three-count

indictment. The District Court sentenced Cumberbatch to a total of 90 months in prison,

which consisted of the statutory minimum of 60 months for Count II, possession of a

firearm in furtherance of drug trafficking, and an additional 30 months calculated under

the Sentencing Guidelines for Count III, possession of a firearm by a previously

convicted felon.

       In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), this Court stated

that except in limited circumstances, we will presume prejudice and direct a remand for

resentencing where the District Court imposed a sentence in the belief that the applicable

Sentencing Guidelines were mandatory. Here, Davis does not affect the 60-month

sentence imposed on Cumberbatch for Count II, possession of a firearm in furtherance of

drug trafficking, because the statutory minimum punishment for that offense is 60



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months. However, our review of the record in this case shows that the District Court

based the 30-month sentence imposed on Cumberbatch for Count III, possession of a

firearm by a convicted felon, on the Sentencing Guidelines, apparently applying them as

mandatory in violation of Booker.

       Having determined that the sentencing issues Cumberbatch raises are best

determined by the District Court in the first instance, we will vacate Cumberbatch’s

sentence with regard to Count III, possession of a firearm by a convicted felon, and

remand this matter for resentencing in accordance with Booker.




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