United States of America v. Gerald Wayne Moore

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3532
UNITED STATES OF AMERICA
v.
GERALD WAYNE MOORE,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cr-354)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
January 17, 2006
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
(Filed: February 2, 2006)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge.

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2
Appellant Gerald Wayne Moore’s response to this Court’s Order dated March 2, 2005
regarding the applicability of United States v. Booker, 543 U.S. 220 (2005), states that he
“wishes to challenge his sentence under [Booker].” Pursuant to said Order, such a statement
is to be “construed as waiving any issues related to the conviction.” We therefore address
only the sentencing issue.
In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), this Court stated that
except in limited circumstances, we will presume prejudice and direct a remand for
resentencing where the District Court imposed a sentence in the belief that the applicable
Sentencing Guidelines were mandatory. That was the situation here, and we perceive no
circumstance in this case which warrants a different result than that found in Davis.
Having determined that the sentencing issues Appellant raises are best determined by
the District Court in the first instance, it is ORDERED and ADJUDGED that the Appellant’s
request for summary remand is GRANTED. The Appellant’s sentence is VACATED and
this matter is REMANDED for resentencing in accordance with Booker.

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