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


4-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3200




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"USA v. Drayton" (2005). 2005 Decisions. Paper 1366.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1366


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-3200


                           UNITED STATES OF AMERICA

                                            v.

                          CHARLES DESMOND DRAYTON,

                                                                       Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Crim. No. 03-00357)
                         Honorable Yvette Kane, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                    April 8, 2005

            BEFORE: BARRY, AMBRO, and GREENBERG, Circuit Judges

                                 (Filed: April 13, 2005)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on appeal from a judgment of conviction

and sentence entered on July 28, 2004, following appellant Charles Desmond Drayton’s

plea of guilty pursuant to a plea agreement to an indictment charging him with interstate
travel in aid of distributing and possession with intent to distribute heroin in violation of

18 U.S.C. § 1952(a)(3). The district court calculated Drayton’s guideline range at 63 to

78 months but sentenced Drayton to a 60-month custodial term, the maximum allowed by

statute, to be followed by a three-year term of supervised release and imposed a $500

fine. Drayton appeals contending that because the “district court imposed [his] sentence

based on the unconstitutional Federal Sentencing Guidelines, this Court should vacate

[his] sentence and remand for resentencing.” Appellant’s br. at 9. The district court had

jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a).

       Drayton contends that this appeal, as is the situation in many cases before us at this

time, involves the transition to the principles of United States v. Booker, 543 U.S.     , 125

S.Ct. 738 (2005). Nevertheless this appeal is unusual because the maximum statutory

sentence was less than the bottom end of the guideline range applicable in this case, a

circumstance that suggests that the guidelines were not germane here. The district court,

however, indicated that “[b]ecause I believe that I am bound by the guidelines, I will

impose a guideline sentence.” App. at 61. Thus, the guidelines may have impacted on

the sentence the court imposed. In these circumstances we have concluded that the issue

with respect to Drayton’s sentence raised on this appeal best would be determined by the

district court in the first instance.

       In accordance with the aforesaid, we will vacate the sentence in the judgment of



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conviction and sentence entered July 28, 2004, and will remand the case to the district

court for resentencing. We, however, will not disturb the conviction.




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