UNITED STATES of America v. Dennis JENKINS, Appellant, 164 F. App'x 259

OPINION BARRY, Circuit Judge Appellant Dennis Jenkins was convicted of conspiracy to distribute cocaine base (“crack”), distributing cocaine base, and distributing cocaine base within 1000 feet of a public housing facility. At sentencing, the District Court found, by a preponderance of the evidence, that Jenkins was personally responsible for distributing over fifty grams of cocaine base, resulting in a base offense level of 32, that was increased to 34 to account for the distribution within 1000 feet of a public housing facility.

The total offense level of 34, together with Jenkins’ criminal history category of VI, resulted in a Sentencing Guidelines imprisonment range of 262-327 months. He was sentenced to 262 months. Jenkins challenges his sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that mandatory enhancement of a maximum sentence under the sentencing guidelines based on facts neither admitted by the defendant nor found by a jury violates the Sixth Amendment).

Specifically, Jenkins asserts that his Sixth Amendment rights were violated by the use of judicial fact finding to enhance his sentence based on the amount of drugs involved. Jenkins was sentenced before the Supreme Court’s decision in Booker. In United States v. Davis, 407 F.3d 162 (3d Cir.2005) (en banc), we adopted a general policy of vacating sentences entered pursuant to pre-Booker law. See id. at 165.

We noted that “we would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given [defendant] the same sentence post-BooZcer.” Id. (quoting United States v. Oliver, 397 F.3d 369, 380 n. 3 (6th Cir.2005)) (modifications in original). Accordingly, although we will affirm Jenkins’ conviction, we will vacate his sentence and remand for resentencing in accordance with Booker. .

Jenkins had initially been sentenced to 240 months imprisonment on the conviction for distribution of cocaine base, 262 months imprisonment on the conspiracy conviction, and 262 months imprisonment on the conviction for distribution near a public housing facility, all terms to ran concurrently. Following a successful appeal of his conspiracy conviction, see United States v. Phillips, 349 F.3d 138 (3d Cir.2003), Jenkins was resentenced by the District Court, which reimposed the 262 month sentence.