                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         May 23, 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-1348
          v.                                            (D. Colorado)
 TERRELLE VINSON MARTIN,                          (D.C. No. 03-CR-252-D)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Terrelle Vinson Martin was convicted after a jury trial of

unlawful possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g).

Because Defendant has multiple prior felony convictions, he was designated an

armed career criminal. See 18 U.S.C. § 924(e). His resulting total offense level,

33, and criminal history category, VI, yielded a guidelines range of 235-293


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
months’ imprisonment. The district court sentenced Defendant to the 235-month

minimum sentence.

      Before the sentencing hearing Defendant filed a motion arguing that in

light of Blakely v. Washington, 124 S. Ct. 2531 (2004), the Sentencing Guidelines

were unconstitutional. The district court denied the motion and Defendant

appeals.

      While this matter was on appeal the United States Supreme Court handed

down United States v. Booker, 125 S. Ct. 738 (2005). The government concedes

that United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005), requires

Defendant’s case to be remanded for resentencing.

      We agree and REMAND to the district court for resentencing.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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