UNITED STATES of America, Appellant, v. Earnest MILLER, a/k/a Paul Jones a/k/a Earnest Russell, 131 F. App'x 393

OPINION OF THE COURT SMITH, Circuit Judge. Submitted Under Third Circuit LAR 34.1(

a) After Remand from the United States Supreme Court. In an opinion filed on April 15, 2004, we agreed with the United States, the appellant in this criminal appeal, and concluded that there were “no facts in this record to support the District Court’s downward departure under U.S.S.G. § 4A1.3 or' U.S.S.G. § 5K2.0.” Consistent with that determination, we vacated the judgment of the District Court sentencing Earnest Miller to 41 months imprisonment. Miller filed a timely petition for writ of certiorari with the Supreme Court. After issuing its decision in United States v.

Booker, 543 U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court granted Miller’s petition for writ of certiorari, vacated our judgment, and remanded for further proceedings in light of Booker. Thereafter, the Clerk of this Court directed the parties in a notice dated March 3, 2005, to comment on the applicability of Booker. Neither party responded. Thus, it appears that neither party seeks resentencing in accordance with Booker. For that reason, we will affirm the judgment of sentence.