Third Circuit disposition — 031707np1-pdf

*The Honorable Michael Chertoff resigned from the Court on February 16, 2005,
and took no part in this decision. The opinion 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NOT PRECEDENTIAL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
___________
No. 03-1707
___________
UNITED STATES OF AMERICA
vs.
FREDY BAUTISTA,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 02-cr-00186-1)
District Judge: The Honorable John R. Padova
___________
Submitted Under Third Circuit LAR 34.1(a)
June 21, 2004
Resubmitted on October 12, 2005, after
Remand from United States Supreme Court
Before: McKEE, NYGAARD, and CHERTOFF, Circuit Judges.*

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2
(Filed: December 16, 2005)
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OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This matter is before us on remand by the United States Supreme Court. We
affirmed Baustista’s conviction and sentence on July 7, 2004. The Supreme Court
subsequently vacated our judgment and remanded the matter to us for further
consideration in light of its opinion in United States v. Booker, — U.S. — , 125 S.Ct.
738, 160 L.Ed.2d 621 (2005).
Because Bautista pleaded guilty, the sole issue raised in his original appeal
concerned his sentence, as imposed by the District Court. Now, Bautista requests that we
remand the matter to the District Court for re-sentencing in light of Booker. The
Government does not object to a remand, reserving the right to assert that, in the exercise
of discretion afforded by Booker, the District Court should re-impose the same sentence
imposed previously.
Having determined that the sentencing issues Bautista raises are best determined
by the District Court in the first instance, we will vacate that portion of our judgment that
affirmed the judgment of sentence and remand this matter to the District Court for
reconsideration and, if that court deems it appropriate, for re-sentencing in accordance
with Booker.

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For the foregoing reasons, we will affirm the conviction, vacate the sentence and
remand this matter to the district court for re-sentencing.

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