United States of America v. Earnest Miller, a/k/a PAUL JONES a/k/a EARNEST RUSSELL On Appeal from the United…

The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of*
Appeals for the Eighth Circuit, sitting by designation.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 02-4304
UNITED STATES OF AMERICA,
Appellant
v.
EARNEST MILLER,
a/k/a
PAUL JONES
a/k/a
EARNEST RUSSELL
_____________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 01 CR 00186)
District Judge: The Honorable Edwin M. Kosik
Submitted Under Third Circuit LAR 34.1(a)
After Remand from the United States Supreme Court
Before: FUENTES, SMITH and GIBSON, Circuit Judges*
(Filed:May 16, 2005)
______________
OPINION OF THE COURT
________________

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SMITH, Circuit Judge.
In an opinion filed on April 15, 2004, we agreed with the United States, the
appellant in this criminal appeal, and concluded that there were “no facts in this record to
support the District Court’s downward departure under U.S.S.G. § 4A1.3 or U.S.S.G. §
5K2.0." Consistent with that determination, we vacated the judgment of the District
Court sentencing Earnest Miller to 41 months imprisonment.
Miller filed a timely petition for writ of certiorari with the Supreme Court. After
issuing its decision in United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005), the
Supreme Court granted Miller’s petition for writ of certiorari, vacated our judgment, and
remanded for further proceedings in light of Booker.
Thereafter, the Clerk of this Court directed the parties in a notice dated March 3,
2005, to comment on the applicability of Booker. Neither party responded. Thus, it
appears that neither party seeks resentencing in accordance with Booker. For that reason,
we will affirm the judgment of sentence.

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