                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1665




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. McCarty" (2005). 2005 Decisions. Paper 1259.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1259


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                      No. 04-1665


                            UNITED STATES OF AMERICA

                                           v.

                                  RYAN MCCARTY

                                       Appellant


                     On Appeal from the United States District Court
                              for the District of New Jersey
                                  (D.C. No. 03-cr-00817)
                       District Judge: Honorable Robert B. Kugler




                               Argued November 2, 2004

             Before: ALITO, FUENTES, and STAPLETON, Circuit Judges.

                                  (Filed: May 2, 2005)


Richard Coughlin
John H. Yauch (Argued)
Candace M. Hom
Federal Public Defender, District of New Jersey
972 Broad St., Fourth Floor
Newark, NJ 07102

ATTORNEYS FOR APPELLANT

Christopher J. Christie
George S. Leone
Gail R. Zweig
David B. Lat (Argued)
Office of the U.S. Attorney
970 Broad St.
Newark, NJ 07102-2535

ATTORNEYS FOR APPELLEE




                                OPINION OF THE COURT




FUENTES, Circuit Judge.

       Ryan McCarty challenges his sentence for mail fraud and mail theft. He argues that

his sentence violates the ex post facto clause of the Constitution, that one of the conditions

of his supervised release is overly broad, and that he is entitled to resentencing under United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

       Having determined that issues with respect to Booker are best determined by the

District Court in the first instance, we vacate the sentence and remand for resentencing in

accordance with that opinion. Because we vacate the sentence, we do not reach McCarty’s

non-Booker sentencing challenges. We note, however, that any challenge to the conviction

has been waived, and we therefore affirm the conviction.




                                              2
TO THE CLERK OF THE COURT:

Kindly file the foregoing opinion.




                                     /s/ Julio M. Fuentes
                                     Circuit Judge




                                       3
