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

4-19-2005

USA v. Brightwell Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2001

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Recommended Citation "USA v. Brightwell" (2005). 2005 Decisions. Paper 1342. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1342

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 03-2001 ___________

UNITED STATES OF AMERICA,

vs.

RICHARD BRIGHTWELL,

Appellant. ___________

On Appeal from the United States District Court For the Eastern District of Pennsylvania

(D.C. No. 01-cr-00033) District Judge: The Honorable R. Barclay Surrick ___________

ARGUED JUNE 21, 2004

DECIDED JULY 28, 2004

ON REMAND from the Supreme Court of the United States JANUARY 24, 2005

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

(Filed: April 19, 2005 ) ___________

*. 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). Marcia G. Shein, Esq. (Argued) Shein & Biggs 1945 Mason Mill Road, Suite 200 Decatur, GA 30030

Counsel for Appellant

Thomas M. Zaleski, Esq. (Argued) Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

___________

OPINION OF THE COURT ___________

NYGAARD, Circuit Judge.

This matter is before us on remand by the United States Supreme Court. This

Court, by opinion filed July 28, 2004, affirmed the District Court’s judgment of

conviction. On January 24, 2005, the Supreme Court granted the motion of Petitioner

Richard Brightwell for leave to proceed in forma pauperis and granted the petition for

writ of certiorari. The Court vacated the judgment of this Court and remanded the case

for further consideration in light of United States v. Booker,

,

(2005).

2 Upon further consideration as directed by the Supreme Court, we reaffirm all

portions of our prior decision with respect to the conviction, including our conclusion that

there was sufficient evidence for a reasonable jury to convict. On the other hand, we will

vacate that portion of our judgment that affirmed the judgment of sentence and remand to

the District Court for resentencing in accordance with Booker.

For the foregoing reasons, we will affirm Brightwell’s conviction, vacate his

sentence and remand to the District Court for resentencing.

3