UNITED STATES of America v. Jeffrey HLINAK, Appellant, 156 F. App'x 506

OPINION OF THE COURT FUENTES, Circuit Judge. Appellant Jeffrey Hlinak’s response to this Court’s Order dated March 7, 2005 regarding the applicability of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), states that he “challenges only his sentence.” Pursuant to said Order, such a statement is to be “construed as waiving any issues related to the conviction.” We therefore address only the sentencing issue. In United States v.

Davis, 407 F.3d 162 (3d Cir.2005) (en banc) — an opinion relating to the denial of a government petition for rehearing en banc concerning a Booker claim on plain-error review — this Court stated that except in limited circumstances, we will presume prejudice and direct a remand for resentencing where the District Court imposed a sentence in the belief that the applicable Sentencing Guidelines were mandatory. That was the situation here, and we perceive no circumstance in this case which warrants a different result from that found in Davis.

Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, it is ORDERED and ADJUDGED that the Appellant’s request for

summary remand is GRANTED. The Appellant’s sentence is VACATED and this matter is REMANDED for resentencing in accordance with Booker.