United States of America v. Dawn Penzera

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2875
____________
UNITED STATES OF AMERICA
v.
DAWN PENZERA,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 03-cr-00171)
District Judge: Honorable Terrence F. McVerry
____________
Submitted Under Third Circuit LAR 34.1(a)
February 13, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
(Filed February 14, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Appellant Dawn Penzera challenges the legality of her sentence under United
States v. Booker, 125 S. Ct. 738 (2005). Because our decision in United States v. Davis,

-- 1 of 3 --

2
407 F.3d 162 (3d Cir. 2005), controls this case, we will vacate Penzera’s sentence and
remand to the District Court for resentencing.
I.
As we write only for the parties, we will relate only the facts relevant to our
disposition of the case. On January 12, 2004, Penzera pled guilty to two counts of
unauthorized use of an access device in violation of 18 U.S.C. § 1029, and on June 15,
2004, she was sentenced to concurrent prison terms of 51 months on each count, three
years’ supervised release, and $6,838.19 in restitution.
II.
In Davis, this Court adopted the policy of remanding for resentencing all cases
pending on direct review when Booker was decided, in which the defendant was
sentenced under the mandatory Sentencing Guidelines regime that existed prior to
Booker. Davis, 407 F.3d at 165. We explained that
[b]ecause the sentencing calculus was governed by a Guidelines framework
erroneously believed to be mandatory, the outcome of each sentencing
hearing conducted under this framework was necessarily affected.
Although plain error jurisprudence generally places the burden on an
appellant to demonstrate specific prejudice flowing from the District Court's
error, in this context – where mandatory sentencing was governed by an
erroneous scheme – prejudice can be presumed.
Id.
Our practice, therefore, is to vacate and remand all sentences imposed in which the
District Court acted under the mandatory Guidelines framework, so that all sentencing

-- 2 of 3 --

3
issues may be properly resolved in the first instance by the District Court in light of
Booker.
III.
Booker was decided on January 12, 2005, one year after Penzera’s guilty plea and
six months after her sentence was imposed. Because Penzera was sentenced under the
mandatory Guidelines framework, Davis requires that her case be returned to the District
Court for resentencing. Accordingly, we will vacate the judgment of the District Court
and remand the case for resentencing in light of Booker.

-- 3 of 3 --