UNITED STATES of America, Appellee, v. Phillip J. KATON, Defendant-Appellant, 138 F. App'x 363

SUMMARY ORDER Phillip J. Katon pleaded guilty to making false and fictitious statements in connection with an attempt to acquire a firearm from a federally licensed dealer in violation of 18 U.S.C. § 922(a)(6). Prior to sentencing, Katon filed a motion in the district court arguing that the United States Sentencing Guidelines were unconstitutional, relying on the holding of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). As the Supreme Court subsequently made clear in United States v. Booker,—U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Katon’s sentence violated the Sixth Amendment.

Because Katon preserved the objection below, we remand with instructions to vacate the judgment and re-sentence. See United States v. Fagans, 406 F.3d 138 (2d Cir.2005). Because we remand for resentencing, we need not consider whether, as Katon contends, the Supreme Court has implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). That argument can be raised in the district court on remand.