Case No: 03-3737 UNITED STATES OF AMERICA v. David Fishman

The Honorable Jan E. Dubois, Senior United States District Judge for the Eastern*
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-3737
UNITED STATES OF AMERICA
v.
DAVID FISHMAN,
Appellant
On appeal from the United States District Court
for the District of New Jersey
District Judge: The Honorable William G. Bassler
District Court No. 02-cr-00587
Submitted Pursuant to Third Circuit LAR 34.1
June 16, 2004
Before: ALITO and SMITH, Circuit Judges, and
DUBOIS, District Judge*
(Filed: May 17, 2005 )
OPINION OF THE COURT
SMITH, Circuit Judge.
David Fishman pled guilty on April 15, 2003 to count three of an information
charging him with knowingly distributing pseudoephedrine in violation of 21 U.S.C. §

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841(f)(1). The District Court sentenced him on August 28, 2003 to a term of sixty
months. Fishman appeals, challenging only his sentence. He contends that the District
Court erred by refusing to grant a downward departure under United States Sentencing
Guidelines (“U.S.S.G.”) §§ 5K2.13, 5K2.0, and 5H1.4. According to Fishman, the
District Court mistakenly believed it did not have the authority to depart under these
guidelines.
Fishman’s sentence was imposed prior to the Supreme Court’s decision in United
States v. Booker, 125 S.Ct. 738 (2005). There, the Supreme Court declared that the
United States Sentencing Guidelines are only advisory. Id. at 757. As a result,
Fishman’s sentence may have been affected by the District Court’s treatment of the
guidelines as mandatory. Having determined that the sentencing issues Fishman raises
are best determined by the District Court in the first instance, we will vacate Fishman’s
sentence and remand for resentencing in accordance with Booker.
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