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


2-2-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3532




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"USA v. Moore" (2006). 2006 Decisions. Paper 1647.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1647


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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 04-3532


                          UNITED STATES OF AMERICA

                                        v.

                           GERALD WAYNE MOORE,

                                    Appellant




                  On Appeal from the United States District Court
                          for the District of New Jersey
                               (D.C. No. 04-cr-354)
                   District Judge: Honorable Robert B. Kugler



                    Submitted Under Third Circuit LAR 34.1(a)
                                January 17, 2006

             Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                             (Filed: February 2, 2006)

                           ________________________

                            OPINION OF THE COURT
                           ________________________


FUENTES, Circuit Judge.

                                        1
       Appellant Gerald Wayne Moore’s response to this Court’s Order dated March 2, 2005

regarding the applicability of United States v. Booker, 543 U.S. 220 (2005), states that he

“wishes to challenge his sentence under [Booker].” Pursuant to said Order, such a statement

is to be “construed as waiving any issues related to the conviction.” We therefore address

only the sentencing issue.

       In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), this Court stated that

except in limited circumstances, we will presume prejudice and direct a remand for

resentencing where the District Court imposed a sentence in the belief that the applicable

Sentencing Guidelines were mandatory. That was the situation here, and we perceive no

circumstance in this case which warrants a different result than that found in Davis.

       Having determined that the sentencing issues Appellant raises are best determined by

the District Court in the first instance, it is ORDERED and ADJUDGED that the Appellant’s

request for summary remand is GRANTED. The Appellant’s sentence is VACATED and

this matter is REMANDED for resentencing in accordance with Booker.




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