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


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1224




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Recommended Citation
"USA v. Kemp" (2006). 2006 Decisions. Paper 1437.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1437


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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 05-1224


                          UNITED STATES OF AMERICA,

                                          v.

                             ELIJAH SHAHEED KEMP,
                                          Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Criminal No. 03-cr-00321-2)
                      District Judge: Honorable Sylvia H. Rambo


                  Submitted Under Third Circuit LAR 34.1(a)
                               March 9, 2006
     Before: AMBRO, and BECKER, Circuit Judges and STAGG, District Judge*

                               (Filed: March 14, 2006 )




                                      OPINION




BECKER, Circuit Judge.


      *The Honorable Tom Stagg, United States District Judge for the Western District
of Louisiana, sitting by designation.
       Pursuant to a plea agreement, appellant Elijah Shaheed Kemp entered a plea of

guilty to felony charges involving the distribution of narcotics. He was sentenced to 92

months imprisonment.

       Appellant challenges his sentence under United States v. Booker, 543 U.S. 220,

125 S.Ct. 738 (2005). In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc),

an opinion relating to the denial of a government petition for rehearing en banc

concerning consideration of a Booker claim on plain error review, this Court stated that

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

sentencing 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 from that found in Davis.

       We will therefore vacate the judgment and remand for re-sentencing.




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