UNITED STATES of America, Appellee, v. James SABATINO, Defendant-Appellant, 159 F. App'x 217

SUMMARY ORDER By

summary order filed December 9, 2004, this court affirmed Defendant-Appellant James Sabatino’s judgment of conviction for mail and wire fraud, see 18 U.S.C. § 1341, and identity theft, see 18 U.S.C. § 1028, entered pursuant to a guilty plea. The mandate was held pending the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

After that case was decided, Sabatino, who is presently serving concurrent terms of incarceration of 60 months for mail and wire fraud and 137 months for identity theft, moved to remand his case to the district court to consider possible resentencing in light of Booker and this court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). This court granted the requested remand by order filed May 5, 2005. Thereafter, the government moved to vacate that order as inconsistent with United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005).

Sabatino opposed the motion, advising the court that he sought to withdraw his guilty plea in light of Booker, or, alternatively, to be resentenced pursuant to Crosby. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision. Sabatino’s request to withdraw his guilty plea is foreclosed by this court’s recent decision in United States v. Roque, 421 F.3d 118 (2d Cir.2005). Further, a Crosby remand is foreclosed by United States v. Morgan, 406 F.3d at 137, and United States v.

Haynes, 412 F.3d 37, 38 (2d Cir.2005) (per curiam). See also United States v. Roque, 421 F.3d at 124. Accordingly, we hereby reiterate our December 9, 2004 decision holding that the district court’s November 17, 2003 judgment of conviction is AFFIRMED. We WITHDRAW and VACATE our remand order of May 5, 2005 and direct the mandate to issue in this case.