United States v. McCarty

• Court: Court of Appeals for the Third Circuit
• Decided: May 2, 2005
• Docket: 04-1665
• Status: Unpublished

Opinion

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USA v. McCarty Precedential or Non-Precedential: Non-Precedential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

2 TO THE CLERK OF THE COURT:

Kindly file the foregoing opinion.

/s/ Julio M. Fuentes Circuit Judge