UNITED STATES of America, v. David FISHMAN, Appellant, 131 F. App'x 397

OPINION OF THE COURT SMITH, Circuit Judge. David Fishman pled guilty on April 15, 2003 to count three of an information charging him with knowingly distributing pseudoephedrine in violation of 21 U.S.C. § 841(f)(1). The District Court sentenced him on August 28, 2003 to a term of sixty months. Fishman appeals, challenging only his sentence. He contends that the District Court, erred by refusing to grant a downward departure under United States Sentencing Guidelines (“U.S.S.G.”) §§ 5K2.13, 5K2.0, and 5H1.4.

According to Fishman, the District Court mistakenly believed it did not have the authority to depart under these guidelines. Fishman’s sentence was imposed prior to the Supreme Court’s decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). There, the Supreme Court declared that the United States Sentencing Guidelines are only advisory. Id. at 757. As a result, Fishman’s sentence may have been affected by the District Court’s treatment of the guidelines as mandatory.

Having determined that the sentencing issues Fishman raises are best determined by the District Court in the first instance, we will vacate Fish-man’s sentence and remand for resentencing in accordance with Booker.