Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit

5-2-2005 USA v. McCarty Precedential or Non-Precedential: Non-Precedential Docket No. 04-1665

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NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 Broad St., Fourth Floor Newark, NJ 07102 ATTORNEYS FOR APPELLANT Christopher J. Christie George S. Leone Gail R. Zweig David B. Lat (Argued) Office of the U.S. Attorney 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.

TO THE CLERK OF THE COURT: Kindly file the foregoing opinion.

/s/ Julio M. Fuentes Circuit Judge