UNITED STATES of America, v. Ryan MCCARTY Appellant, 127 F. App'x 82

OPINION OF THE COURT FUENTES, Circuit Judge. Ryan McCarty challenges his sentence for mad fraud and maE 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, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 chaEenge to the conviction has been waived, and we therefore affirm the conviction.