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


12-16-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1707




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Recommended Citation
"USA v. Bautista" (2005). 2005 Decisions. Paper 106.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/106


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                                                          NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                           No. 03-1707
                           ___________


                UNITED STATES OF AMERICA

                                 vs.

                       FREDY BAUTISTA,

                                Appellant
                           ___________


        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
              (D.C. Criminal No. 02-cr-00186-1)
        District Judge: The Honorable John R. Padova
                         ___________

           Submitted Under Third Circuit LAR 34.1(a)
                        June 21, 2004

            Resubmitted on October 12, 2005, after
           Remand from United States Supreme Court


Before: McKEE, NYGAARD, and CHERTOFF, Circuit Judges.*




 *The Honorable Michael Chertoff resigned from the Court on February 16, 2005,
 and took no part in this decision. The opinion is filed by a quorum of the panel. 28
 U.S.C. 46(d).
                                (Filed: December 16, 2005)
                                        ___________

                                OPINION OF THE COURT
                                     ___________

NYGAARD, Circuit Judge.

       This matter is before us on remand by the United States Supreme Court. We

affirmed Baustista’s conviction and sentence on July 7, 2004. The Supreme Court

subsequently vacated our judgment and remanded the matter to us for further

consideration in light of its opinion in United States v. Booker, — U.S. — , 125 S.Ct.

738, 160 L.Ed.2d 621 (2005).

       Because Bautista pleaded guilty, the sole issue raised in his original appeal

concerned his sentence, as imposed by the District Court. Now, Bautista requests that we

remand the matter to the District Court for re-sentencing in light of Booker. The

Government does not object to a remand, reserving the right to assert that, in the exercise

of discretion afforded by Booker, the District Court should re-impose the same sentence

imposed previously.

       Having determined that the sentencing issues Bautista raises are best determined

by the District Court in the first instance, we will vacate that portion of our judgment that

affirmed the judgment of sentence and remand this matter to the District Court for

reconsideration and, if that court deems it appropriate, for re-sentencing in accordance

with Booker.



                                              2
       For the foregoing reasons, we will affirm the conviction, vacate the sentence and

remand this matter to the district court for re-sentencing.
