United States of America v. Charles Desmond Drayton

NOT PRECEDENTIAL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

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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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