United States of America v. Maicol Alvarez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3959
UNITED STATES OF AMERICA
v.
MAICOL ALVAREZ
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cr-00363-16)
District Judge: Honorable Berle M. Schiller
Submitted Under Third Circuit L.A.R. 34.1(a)
February 10, 2005
Before: BARRY, FUENTES, and VAN ANTWERPEN,
Circuit Judges.
(Filed: March 25, 2005)
____
OPINION OF THE COURT
FUENTES, Circuit Judge.
Maicol Alvarez challenges his sentence for conspiracy to distribute cocaine and crack

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cocaine. He argues that the downward departure for his cooperation is not sufficiently
significant, that the District Court failed to consider all relevant factors in making the
departure, that the District Court failed to consider one of his departure requests, that the
District Court made an arithmetical error in calculating his sentence, and that he is entitled
to resentencing under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
Having determined that issues with respect to Booker are best determined by the
District Court in the first instance, we vacate the sentence and remand for resentencing in
accordance with that opinion. Because we vacate the sentence, we do not reach Alvarez’s
non-Booker sentencing challenges. We note, however, that any challenge to the conviction
has been waived, and we therefore affirm the conviction.

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