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


2-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3713




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"USA v. Ishmail" (2006). 2006 Decisions. Paper 1538.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3713


                           UNITED STATES OF AMERICA

                                            v.

                                  RASHAD ISHMAIL
                                     a/k/a Apple

                                                       Rashad Ishmail,
                                                                 Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 03-cr-00604
                             (Honorable Cynthia M. Rufe)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 9, 2006
         Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges

                                (Filed February 28, 2006)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Appellant Rashad Ishmail pled guilty to a single count of possession of a firearm

by a felon in violation of 21 U.S.C. § 922(g)(1). The District Court sentenced Ishmail to
77 months in prison and three years supervised release, and imposed a $1,000 fine and a

$100 special assessment. Ishmail timely appealed his sentence, but did not challenge his

conviction or guilty plea.

       At sentencing, the District Court determined Ishmail had an offense level of 21

and criminal history category of VI, leading to a sentencing guidelines range of 77-96

months. Ishmail’s offense level and criminal history category were based in part on the

District Court’s finding that he had at least two prior convictions for controlled substance

offenses. The District Court imposed a sentence of 77 months, but explicitly stated it

would have imposed a lesser sentence of 48 months imprisonment were it not bound by

the sentencing guidelines.

       Ishmail contends that by considering his prior convictions in sentencing, the

District Court violated his Fifth Amendment right to be subject to a maximum

punishment based solely on facts charged in an indictment and his Sixth Amendment

right to jury trial. He contends his sentence should be vacated and remanded for

resentencing based solely on facts charged in the indictment and to which he pled guilty,

and consistent with the holding of United States v. Booker, 543 U.S. 220 (2005).1

       Having determined that the sentencing issues appellant raises are best determined

by the District Court in the first instance, United States v. Davis, 407 F.3d 162, 166 (3d


   1
    The government contends Booker renders Ishmail’s objections to the District Court’s
findings regarding prior convictions moot, but does not object to Ishmail’s request for
resentencing consistent with Booker.

                                             2
Cir. 2005) (en banc), we will vacate the sentence and remand for resentencing in

accordance with Booker.




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