Case No: 03-3594 UNITED STATES OF AMERICA v. Jonathan Santana

Judge Chertoff resigned prior to the time the opinion was filed. The opinion is filed*
by a quorum of the panel. 28 U.S.C. § 46(d).
Honorable Norma L. Shapiro, Senior District Judge for the United States District**
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Case No: 03-3594
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UNITED STATES OF AMERICA
v.
JONATHAN SANTANA,
Appellant.
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On Appeal from the United States District Court
for the District of Delaware
District Court No. 01-cr-00073
District Judge: The Honorable Joseph J. Farnan, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
January 11, 2005
Before: ROTH and CHERTOFF, Circuit Judges, and SHAPIRO, District Judge.* **
(Filed June 2, 2005)

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OPINION
SHAPIRO, District Judge.
Jonathan Santana (“Santana”) pled guilty to distribution of crack cocaine base and
was sentenced to 70 months imprisonment. Santana now appeals his sentence.
I. FACTUAL AND PROCEDURAL HISTORY
On October 9, 2001, Santana was indicted on three counts of distribution of more
than five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).
He pled guilty to Count II of the indictment, and Counts I and III were dismissed. In the
plea agreement, Mr. Santana admitted distributing approximately 28 grams of crack
cocaine. He also stipulated that the total amount of crack cocaine attributable for
sentencing was over 50 but less than 150 grams. The pre-sentence report set his base
offense under the Sentencing Guidelines (“Guidelines”) at level 32 for his distribution of
77.98 grams, but recommended downward adjustments resulting in a final offense level
of 27 with criminal history category I. The District Court sentenced Mr. Santana within
the Guidelines range to 70 months imprisonment, three years of supervised release, and a
$100.00 special assessment.
After Mr. Santana was sentenced, the Supreme Court decided Blakely v.
Washington, 124 S.Ct. 2531 (2004), striking down the State of Washington’s sentencing

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guidelines laws as violative of the Sixth Amendment under Apprendi v. New Jersey, 530
U.S. 466 (2000) (any fact raising the sentence beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt). Santana brought this
appeal arguing the Guidelines are unconstitutional under Blakely and Apprendi. After
Santana submitted his appeal, the Supreme Court decided United States v. Booker, 125
S.Ct. 738 (2005), holding the Guidelines unconstitutional unless advisory only. This
court requested and received additional briefing from the parties regarding the effect of
Booker on this appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291.
Santana did not object to his sentence in the District Court. Under the plain error
test of Federal Rule of Criminal Procedure 52(b), where there is an error that is plain, and
affects substantial rights, an appellate court may correct an error not raised at trial, but
only if the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Cotton, 535 U.S. 625 (2002); Johnson v. United States,
520 U.S. 461, 466-467 (1997).
III. DISCUSSION
Because this appeal was pending on direct review when Booker was decided, we
apply the ruling of that case. Under Booker and Apprendi, a sentence may be based on

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facts admitted by the defendant. Booker, 125 S.Ct. at 756. Because Santana’s sentence
was based on facts admitted by him in the plea agreement, his sentence was not in
violation of the Sixth Amendment. See United States v. Murdock, 398 F.3d 491, 501-502
(6 Cir. 2005). However, Booker also held that mandatory application of the Guidelinesth
is unconstitutional. Id. The District Court’s mandatory application of the guidelines was
therefore in error.
From the record, we cannot determine whether that error had a substantial effect in
determining the sentence. In light of the determination of the judges of this Court that the
sentencing issue is best determined by the District Court in the first instance, we vacate
the sentence and remand for resentencing in accordance with Booker. United States v.
Davis, 397 F.3d 173, 183 (3d Cir. 2005); United States v. Ordaz, 398 F.3d 236, 239 (3d
Cir. 2005).
IV. CONCLUSION
For the reasons set forth above, we VACATE the judgment of sentence and
REMAND this case for resentencing.

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