United States of America v. Elijah Shaheed Kemp

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1224
UNITED STATES OF AMERICA,
v.
ELIJAH SHAHEED KEMP,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-00321-2)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2006
Before: AMBRO, and BECKER, Circuit Judges and STAGG, District Judge*
(Filed: March 14, 2006 )
OPINION
BECKER, Circuit Judge.
*The Honorable Tom Stagg, United States District Judge for the Western District
of Louisiana, sitting by designation.

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Pursuant to a plea agreement, appellant Elijah Shaheed Kemp entered a plea of
guilty to felony charges involving the distribution of narcotics. He was sentenced to 92
months imprisonment.
Appellant challenges his sentence under United States v. Booker, 543 U.S. 220,
125 S.Ct. 738 (2005). In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc),
an opinion relating to the denial of a government petition for rehearing en banc
concerning consideration of a Booker claim on plain error review, this Court stated that
except in limited circumstances we will presume prejudice and direct a remand for re-
sentencing 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 from that found in Davis.
We will therefore vacate the judgment and remand for re-sentencing.

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