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

4-26-2005

USA v. Fetzner Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3692

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Recommended Citation "USA v. Fetzner" (2005). 2005 Decisions. Paper 1316. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1316

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 03-3692 ___________

UNITED STATES OF AMERICA

vs.

DONALD NICHOLAS FETZNER,

Appellant.

___________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 02-cr-00006E) District Judge: The Honorable Sean J. McLaughlin

___________

Submitted Under Third Circuit LAR 34.1(a) June 24, 2004

BEFORE: NYGAARD, McKEE, and CHERTOFF,* Circuit Judges.

* This case was submitted to the panel of Judges Nygaard, McKee, and Chertoff. Judge Chertoff resigned after submission, but before the filing of the opinion. The decision is filed by a quorum of the panel.

(d). (Filed: April 26, 2005)

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OPINION OF THE COURT ___________

NYGAARD, Circuit Judge.

This Court, by opinion filed August 11, 2004, affirmed the District Court’s

judgment of conviction and sentence. On August 13, 2004, this Court vacated the

opinion and on October 26, 2004, held the case C.A.V. pending decision by the U.S.

Supreme Court in United States v. Booker,

,

(2005).

Appellant David Fetzner pleaded guilty to one count of conspiracy to defraud the

United States of income tax revenues in violation of

. Now, Fetzner

challenges his sentence under United States v. Booker,

,

(2005). We reaffirm all portions of our prior decision with respect to the conviction.

However, having determined that the sentencing issues appellant raises are best

determined by the District Court in the first instance, we vacate the sentence and remand

for resentencing in accordance with Booker.

TO THE CLERK:

Please file the foregoing opinion.

/s/ Richard L. Nygaard Circuit Judge