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


11-16-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2226




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"USA v. Carney" (2006). 2006 Decisions. Paper 203.
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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 04-2226


                        UNITED STATES OF AMERICA

                                        v.

                               HASSAN CARNEY
                                   a/k/a Boo-Boo
                               a/k/a Willie Timmons
                                a/k/a Shawn Carney
                                a/k/a William Butts

                                                   Hassan Carney,
                                                            Appellant


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                          D.C. Criminal No. 02-cr-00282
                           (Honorable John P. Fullam)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 8, 2006

      Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges

                            (Filed: November 16, 2006)



                           OPINION OF THE COURT


SCIRICA, Chief Judge.
       Hassan Carney challenges his sentence in light of United States v. Booker, 543

U.S. 220 (2005). We will vacate the sentence and remand for resentencing. United

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

                                            I.

       Hassan Carney pled guilty to a single count of possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1). On February 25, 2003, the District Court sentenced

Carney to 120 months in prison, a three-year term of supervised release, a $1,000 fine,

and a special assessment of $100. At sentencing, the District Court determined Carney

had an offense level of 251 and a criminal history category of VI, which rendered a

sentencing range of 110 to 137 months. The District Court imposed the statutory

maximum sentence of 120 months.

       Carney filed a timely appeal contending he was not afforded the right to allocution

and challenging other sentencing factors. We vacated the sentence and remanded on the

issue of proper allocution. See United States v. Carney, 88 F. App’x 534, 536 (3d Cir.

2004). On April 19, 2004, the District Court re-sentenced Carney to 115 months in

prison, with the other terms unchanged. Carney again filed a timely appeal.

                                            II.




   1
    The District Court found a base offense level of 24, then assessed a two-level
enhancement for possession of a stolen firearm, a two-level enhancement for reckless
endangerment of a police office, and a three-level downward departure for acceptance of
responsibility.

                                            2
       The District Court twice sentenced Carney under the mandatory Sentencing

Guidelines framework in effect prior to Booker. In Davis, we established a policy to

vacate and remand all sentences, except in limited circumstances, for “defendants

sentenced under the previously mandatory regime whose sentences are being challenged

on direct appeal.” United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc). As

we reasoned in Davis, we cannot determine whether the District Court would have

imposed a different sentence under an advisory framework and therefore, the sentencing

issues raised here are best determined by the District Court in the first instance. Id. at

164–65, 166.

                                             III.

       We will vacate the sentence and remand for resentencing in accordance with

Booker. Davis, 407 F.3d at 165.




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