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


4-26-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3692




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"USA v. Fetzner" (2005). 2005 Decisions. Paper 1316.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1316


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 03-3692
                                      ___________


                           UNITED STATES OF AMERICA

                                           vs.

                           DONALD NICHOLAS FETZNER,

                                            Appellant.

                                      ___________


                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                            (D.C. Criminal No. 02-cr-00006E)
                   District Judge: The Honorable Sean J. McLaughlin

                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 24, 2004


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




        * This case was submitted to the panel of Judges Nygaard, McKee, and
Chertoff. Judge Chertoff resigned after submission, but before the filing of the opinion.
The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
                                  (Filed: April 26, 2005)

                                       ___________

                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

       This Court, by opinion filed August 11, 2004, affirmed the District Court’s

judgment of conviction and sentence. On August 13, 2004, this Court vacated the

opinion and on October 26, 2004, held the case C.A.V. pending decision by the U.S.

Supreme Court in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).

       Appellant David Fetzner pleaded guilty to one count of conspiracy to defraud the

United States of income tax revenues in violation of 18 U.S.C. § 371. Now, Fetzner

challenges his sentence under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005). We reaffirm all portions of our prior decision with respect to the conviction.

However, having determined that the sentencing issues appellant raises are best

determined by the District Court in the first instance, we vacate the sentence and remand

for resentencing in accordance with Booker.

TO THE CLERK:

       Please file the foregoing opinion.




                                               /s/ Richard L. Nygaard
                                                   Circuit Judge
