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


5-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3737




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"USA v. Fishman" (2005). 2005 Decisions. Paper 1181.
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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 03-3737

                           UNITED STATES OF AMERICA

                                            v.

                                  DAVID FISHMAN,
                                        Appellant




                   On appeal from the United States District Court
                              for the District of New Jersey
                   District Judge: The Honorable William G. Bassler
                             District Court No. 02-cr-00587


                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 16, 2004

                    Before: ALITO and SMITH, Circuit Judges, and
                              DUBOIS, District Judge *

                                 (Filed: May 17, 2005 )


                              OPINION OF THE COURT

SMITH, Circuit Judge.

      David Fishman pled guilty on April 15, 2003 to count three of an information

charging him with knowingly distributing pseudoephedrine in violation of 21 U.S.C. §


  *
    The Honorable Jan E. Dubois, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
841(f)(1). The District Court sentenced him on August 28, 2003 to a term of sixty

months. Fishman appeals, challenging only his sentence. He contends that the District

Court erred by refusing to grant a downward departure under United States Sentencing

Guidelines (“U.S.S.G.”) §§ 5K2.13, 5K2.0, and 5H1.4. According to Fishman, the

District Court mistakenly believed it did not have the authority to depart under these

guidelines.

       Fishman’s sentence was imposed prior to the Supreme Court’s decision in United

States v. Booker, 125 S.Ct. 738 (2005). There, the Supreme Court declared that the

United States Sentencing Guidelines are only advisory. Id. at 757. As a result,

Fishman’s sentence may have been affected by the District Court’s treatment of the

guidelines as mandatory. Having determined that the sentencing issues Fishman raises

are best determined by the District Court in the first instance, we will vacate Fishman’s

sentence and remand for resentencing in accordance with Booker.

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