Third Circuit disposition — 032001npa-pdf

*. This case was submitted to the panel of Judges Nygaard, McKee, and Chertoff.
Judge Chertoff resigned after submission, but before the filing of the opinion. The
decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-2001
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UNITED STATES OF AMERICA,
vs.
RICHARD BRIGHTWELL,
Appellant.
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 01-cr-00033)
District Judge: The Honorable R. Barclay Surrick
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ARGUED JUNE 21, 2004
DECIDED JULY 28, 2004
ON REMAND from the Supreme Court of the United States
JANUARY 24, 2005
BEFORE: NYGAARD, McKEE, and CHERTOFF , Circuit Judges.*
(Filed: April 19, 2005 )
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Marcia G. Shein, Esq. (Argued)
Shein & Biggs
1945 Mason Mill Road, Suite 200
Decatur, GA 30030
Counsel for Appellant
Thomas M. Zaleski, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
This matter is before us on remand by the United States Supreme Court. This
Court, by opinion filed July 28, 2004, affirmed the District Court’s judgment of
conviction. On January 24, 2005, the Supreme Court granted the motion of Petitioner
Richard Brightwell for leave to proceed in forma pauperis and granted the petition for
writ of certiorari. The Court vacated the judgment of this Court and remanded the case
for further consideration in light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005).

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Upon further consideration as directed by the Supreme Court, we reaffirm all
portions of our prior decision with respect to the conviction, including our conclusion that
there was sufficient evidence for a reasonable jury to convict. On the other hand, we will
vacate that portion of our judgment that affirmed the judgment of sentence and remand to
the District Court for resentencing in accordance with Booker.
For the foregoing reasons, we will affirm Brightwell’s conviction, vacate his
sentence and remand to the District Court for resentencing.

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