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


3-29-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2579




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"USA v. Thomas" (2006). 2006 Decisions. Paper 1372.
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                                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                  Case No. 04-2579


                          UNITED STATES OF AMERICA

                                            v.

                                 HASSAN THOMAS,

                                                         Appellant


                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Criminal No. 03-cr-00062-2)
                       District Judge: Honorable Yvette Kane


                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 25, 2006

               Before: RENDELL and STAPLETON, Circuit Judges,
                          and GILES *, District Judge

                                (Filed March 29, 2006)


                             OPINION OF THE COURT




________________________

   * Honorable James T. Giles, Judge of the United States District Court for the Eastern
     District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

      Hassan Thomas raises a challenge based on United States v. Booker, 125 S. Ct.

738 (2005), to the sentence he received following his guilty plea on charges of

distributing an unspecified quantity of crack cocaine. He was sentenced to 176 months

after the District Judge found that the proper drug amount for sentencing purposes was

between 50 and 150 grams. Because a defendant convicted on a drug offense cannot be

sentenced until a drug amount is determined, see U.S. Sentencing Guidelines Manual

§ 2D1.1, Thomas’s guilty plea alone did not support any sentence. Thus, the amount

determined by the District Court was necessarily a fact that enhanced Thomas’s sentence

beyond the “maximum authorized by the facts established by a plea of guilty.” Booker,

125 S. Ct. at 756. After Booker, such facts cannot be found by the District Judge, but

must be admitted by the defendant or made by a jury. Id. Accordingly, we will vacate

Thomas’s sentence and remand for resentencing in accordance with Booker. See United

States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc).




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