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


7-22-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1516




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Recommended Citation
"USA v. Maldonado" (2005). 2005 Decisions. Paper 793.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/793


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                                              NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                  No. 04-1516


       UNITED STATES OF AMERICA


                       v.

          ROBERTO MALDONADO

                            Appellant.


 On Appeal from the United States District Court
    for the Western District of Pennsylvania
            (D.C. No. 03-cr-00178-1)
 District Judge: Honorable Terrence F. McVerry



  Submitted Under Third Circuit LAR 34.1(a)
                 on 11/15/04

Before: ROTH, SMITH, and WEIS, Circuit Judges.

              (Filed July 22, 2005)


             OPINION OF THE COURT
ROTH, Circuit Judge.

       This is an appeal by Roberto Maldonado who was convicted of conspiracy to

distribute and to possess with intent to distribute 5 kilograms or more of cocaine, pursuant

to a plea agreement in which the Government promised to file a United States Sentencing

Guidelines (U.S.S.G.) § 5(k) motion requesting a reduction in Maldonado’s offense level,

based on substantial assistance. The District Court granted the government’s § 5(k)

motion but refused to grant defendant’s request for a minor role reduction under U.S.S.G.

§ 3B1.2(b). The District Court found that Maldonado’s activities rose above that of a

minor participant. Maldonado did not appeal his conviction but has appealed his sentence

based on the District Court’s refusal to grant him relief under § 3B1.2(b). Subsequent to

briefing before this court on the merits of the sentencing guidelines issue, the United

States Supreme Court issued United States v. Booker, 125 S. Ct. 738 (2005). In

subsequent briefing, Maldonado has additionally sought resentencing based on Booker.

The Booker issue was briefed by the parties. For the reasons explained below, we will

affirm the conviction, vacate the sentence and remand for resentencing under Booker.

                  JURISDICTION AND STANDARD OF REVIEW

       Jurisdiction was conferred on the District Court by 18 U.S.C. § 3231. A timely

notice of appeal was filed. We have jurisdiction under 18 U.S.C. §1291 and 18 U.S.C.

§ 3742.

       A defendant’s Booker claim, asserted for the first time on appeal, is subject to

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plain error review. United States v. Davis, 407 F.3d 162, 164-65 (3d Cir. 2005) (en

banc).

                                       DISCUSSION

         Where, as here, the District Court imposed sentence and treated the “Guidelines as

mandatory rather than advisory,” defendant’s claim survives scrutiny under plain error

review. Id. at 164. In these circumstances, “we will decide claims of error related to the

conviction, vacate the sentence, and remand for consideration of the appropriate sentence

by the District Court in the first instance.” Id. at 166. We do not address Maldonado’s

§ 3B1.2(b) claim because any such decision on our part might very well be rendered

unnecessary by resentencing under Booker. See, e.g., United States v. Urban, 404 F.3d

754, 783 n.11 (3d Cir. 2005) (“Appellants O’Malley and Tursi also argue that the District

Court committed a sentencing error in fixing their base offense level under the sentencing

guidelines for the RICO convictions. Because we are vacating O’Malley’s and Tursi’s

sentences and remanding to the District Court for resentencing under Booker, we will not

address this particular challenge to their sentences here.”).

                                      CONCLUSION

         For the reasons explained above, we will affirm the conviction, vacate the sentence

and remand for resentencing under Booker.




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