                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1701




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"USA v. Le" (2007). 2007 Decisions. Paper 960.
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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 04-1701


                         UNITED STATES OF AMERICA

                                         v.

                                 SON THANH LE,
                                            Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           D.C. Crim. No. 02-cr-00689-2
                 District Judge: The Honorable Petrese B. Tucker


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 21, 2007


            Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges

                           (Opinion Filed: June 12, 2007)


                                     OPINION




  *
   The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
BARRY, Circuit Judge

       Appellant, Son Thanh Le, argues that the District Court committed multiple errors

in calculating his Guidelines range and ultimately sentencing him to 151 months

imprisonment. We will remand for resentencing.

       In October 2002, Le was charged by a federal grand jury with conspiracy to

distribute 3,4 methylenedioxymethamphetamine (“MDMA”), in violation of 21 U.S.C. §

846, and possession with intent to distribute MDMA and aiding and abetting such

possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §

2. Le went to trial, and, having failed to appear for the final day of proceedings, was

convicted by the jury on both counts in absentia. Two months later, he was arrested on a

warrant and was subsequently sentenced to 151 months imprisonment followed by three

years of supervised release. A $2000 fine and a $200 special assessment were also

imposed.

       Le timely appealed. He argues that the District Court improperly increased his

Guidelines offense level for obstruction of justice, failed to decrease that level to take into

account his minimal involvement in the offense and his acceptance of responsibility, and

refused to downward depart based on the aberrant nature of his conduct. In addition, as

he was sentenced prior to the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), he asks that his sentence be vacated and his case remanded for

resentencing.

       Although both parties urge us to rule on Le’s various objections, we refuse to do

                                              2
so. Pursuant to our ruling in United States v. Davis, 407 F.3d 162, 166 (3d Cir. 2005) (en

banc), in those instances in which an appellant challenges a pre-Booker sentence we have

determined that all sentencing issues should be remanded to the district courts to be

decided in the first instance. See United States v. Boone, 458 F.3d 321, 332 & n.8 (3d Cir.

2006).

         We will, therefore, vacate the judgment of sentence and remand for resentencing.




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