United States of America v. Tyrone Wells

NOT PRECEDENTIAL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

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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

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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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