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


12-8-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3395




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3395


                           UNITED STATES OF AMERICA

                                            v.

                                   TYRONE WELLS,
                                         Appellant


                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (D.C. Criminal No. 03-cr-00362)
                    District Judge: Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2005

        Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                              (Filed : December 8, 2005 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      On April 22, 2004 Tyrone Wells pled guilty to conspiracy to possess with intent to

distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846. At

sentencing, the District Court increased Wells’ base offense level under the Sentencing
Guidelines because it found that he possessed 353 grams of crack cocaine. The District

Court also increased Wells’ offense level by two points, as required by the Sentencing

Guidelines, for possession of a dangerous weapon. Both increases were based on facts

contained in the Presentence Investigation Report. Wells was sentenced to 210 months in

prison followed by a five-year term of supervised release.

       On appeal, Wells contends that the adjustment to his base offense level violated

his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296 (2004). He

challenges the two-level increase for possession of a violent weapon on the same

grounds. Although United States v. Booker, 125 S.Ct. 738 (2005), had not been decided

at the time of briefing, we directed Wells to comment on the applicability of Booker to his

case. He responded in a letter dated March 11, 2005, raising a Booker challenge. In the

letter, Wells argues that his sentence was improper in light of Booker, because the District

Court applied the Sentencing Guidelines on a mandatory, rather than merely advisory,

basis. He also claims that the District Court erred in increasing his offense level based on

facts contained in the Presentence Investigation Report because the facts had not been

admitted nor proven beyond a reasonable doubt. We have jurisdiction to review Wells’

sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       In accordance with our decision in United States v. Davis, 407 F.3d 162 (3d Cir.

2005), where we concluded that defendants sentenced under the previously mandatory

guidelines regime should have their sentence remanded to the District Court, we will



                                             2
vacate the sentence and remand for resentencing in accordance with Booker. Davis, 407

F.3d at 165. Appellant does not challenge his conviction.




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