USA v. Stephen Erhart

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3467
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Robert Francis, *
*
Defendant-Appellant. *
___________ Appeals from the United States
District Court for the Eastern District
No. 02-3498 of Missouri.
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[UNPUBLISHED]
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Germaine Davis, also known as Gary *
Henderson, *
*
Defendant-Appellant. *
*

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No. 02-3964
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United States of America, *
*
Plaintiff-Appellee *
*
v. *
*
Anthony Francis, *
*
Defendant-Appellant. *
*
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No. 02-3965
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United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Leo Muhammad, *
*
Defendant-Appellant. *
*
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Submitted: January 24, 2005
Filed: July 21, 2005
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Before MELLOY, BEAM, and SMITH, Circuit Judges.
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PER CURIAM
Appellants Robert Francis, Anthony Francis, and Germaine Davis each filed
petitions for writ of certiorari with the United States Supreme Court. The United
States Supreme Court granted a writ of certiorari as to each of those defendants and
vacated the decision as to each of them. Appellant Leo Muhammad filed a petition
for rehearing by the panel. That petition remains pending.
We grant Leo Muhammad’s petition for rehearing by the panel. As to all four
cases, this court has conducted a review of the record in this case and the opinion
filed May 12, 2004, is reinstated in its entirety, with the exception that the cases are
remanded to the district court for resentencing under the advisory regime outlined in
United States v. Booker, 125 S.Ct. 738 (2005).
In remanding these cases, the court notes that as to each defendant the district
court enhanced the sentence based upon judge determined guideline adjustments.
Accordingly, there is a Sixth Amendment error as discussed in Booker. The
defendants preserved the Sixth Amendment issue by specifically referencing the
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v.
Pirani, 406 F.3d 543, 549 (8th Cir. 2005). The four defendants were tried together
and the defendants adopted each others objections to the presentence reports, which
objections included a reference to Apprendi error. Since there is preserved Sixth
Amendment error, the court will remand for resentencing under the advisory
sentencing regime as outlined in Booker.
In conclusion, the court reinstates the decision filed May 12, 2004, in this
matter, except as may be inconsistent with the remand for resentencing under the
advisory guideline system as outlined in United States v. Booker.
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