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


2-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2875




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Recommended Citation
"USA v. Penzera" (2006). 2006 Decisions. Paper 1590.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1590


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-2875
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                  DAWN PENZERA,

                                          Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 03-cr-00171)
                    District Judge: Honorable Terrence F. McVerry
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 13, 2006

         Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

                                (Filed February 14, 2006)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Appellant Dawn Penzera challenges the legality of her sentence under United

States v. Booker, 125 S. Ct. 738 (2005). Because our decision in United States v. Davis,
407 F.3d 162 (3d Cir. 2005), controls this case, we will vacate Penzera’s sentence and

remand to the District Court for resentencing.

                                              I.

       As we write only for the parties, we will relate only the facts relevant to our

disposition of the case. On January 12, 2004, Penzera pled guilty to two counts of

unauthorized use of an access device in violation of 18 U.S.C. § 1029, and on June 15,

2004, she was sentenced to concurrent prison terms of 51 months on each count, three

years’ supervised release, and $6,838.19 in restitution.

                                             II.

       In Davis, this Court adopted the policy of remanding for resentencing all cases

pending on direct review when Booker was decided, in which the defendant was

sentenced under the mandatory Sentencing Guidelines regime that existed prior to

Booker. Davis, 407 F.3d at 165. We explained that

       [b]ecause the sentencing calculus was governed by a Guidelines framework
       erroneously believed to be mandatory, the outcome of each sentencing
       hearing conducted under this framework was necessarily affected.
       Although plain error jurisprudence generally places the burden on an
       appellant to demonstrate specific prejudice flowing from the District Court's
       error, in this context – where mandatory sentencing was governed by an
       erroneous scheme – prejudice can be presumed.

Id.

       Our practice, therefore, is to vacate and remand all sentences imposed in which the

District Court acted under the mandatory Guidelines framework, so that all sentencing



                                              2
issues may be properly resolved in the first instance by the District Court in light of

Booker.

                                             III.

       Booker was decided on January 12, 2005, one year after Penzera’s guilty plea and

six months after her sentence was imposed. Because Penzera was sentenced under the

mandatory Guidelines framework, Davis requires that her case be returned to the District

Court for resentencing. Accordingly, we will vacate the judgment of the District Court

and remand the case for resentencing in light of Booker.




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