UNITED STATES of America, v. Donald Nicholas FETZNER, Appellant, 126 F. App'x 580

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, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Appellant David Fetzner pleaded guilty to one count of conspiracy to defraud the United States of income tax revenues in violation of 18 U.S.C. § 371. Now, Fetzner challenges his sentence under United States v.

Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.