United States of America v. Ryan McCarty

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1665
UNITED STATES OF AMERICA
v.
RYAN MCCARTY
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 03-cr-00817)
District Judge: Honorable Robert B. Kugler
Argued November 2, 2004
Before: ALITO, FUENTES, and STAPLETON, Circuit Judges.
(Filed: May 2, 2005)
Richard Coughlin
John H. Yauch (Argued)
Candace M. Hom
Federal Public Defender, District of New Jersey
972 Broad St., Fourth Floor
Newark, NJ 07102
ATTORNEYS FOR APPELLANT
Christopher J. Christie

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George S. Leone
Gail R. Zweig
David B. Lat (Argued)
Office of the U.S. Attorney
970 Broad St.
Newark, NJ 07102-2535
ATTORNEYS FOR APPELLEE
OPINION OF THE COURT
FUENTES, Circuit Judge.
Ryan McCarty challenges his sentence for mail fraud and mail theft. He argues that
his sentence violates the ex post facto clause of the Constitution, that one of the conditions
of his supervised release is overly broad, and that he is entitled to resentencing under United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
Having determined that issues with respect to Booker are best determined by the
District Court in the first instance, we vacate the sentence and remand for resentencing in
accordance with that opinion. Because we vacate the sentence, we do not reach McCarty’s
non-Booker sentencing challenges. We note, however, that any challenge to the conviction
has been waived, and we therefore affirm the conviction.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing opinion.
/s/ Julio M. Fuentes
Circuit Judge

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