UNITED STATES of America, v. Frank GINESI, Appellant, 127 F. App'x 636

OPINION OF THE COURT FUENTES, Circuit Judge. Frank Ginesi pled guilty to a two count indictment charging him in Count One with mail fraud, and in Count Two with filing false tax returns. The District Court sentenced Ginesi, pursuant to the United States Sentencing Guidelines, to a 27 month term of imprisonment after denying Ginesi’s motion for a downward departure based upon his age and deteriorating mental condition. Ginesi later moved for reconsideration of his sentence, which was also denied by the District Court. On appeal, he challenges his sentence under United States v.

Booker,—U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker. Ginesi raises no challenge as to his conviction and accordingly has waived any argument in this regard. We will affirm the judgment of conviction.