UNITED STATES of America v. Dawn PENZERA, Appellant, 166 F. App'x 637

OPINION OF THE COURT FISHER, Circuit Judge. Appellant Dawn Penzera challenges the legality of her sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because our decision in United States v. Davis, 407 F.3d 162 (3d Cir.2005), controls this case, we will vacate Penzera’s sentence and remand to the District Court for resentencing. I. As we write only for the parties, we will relate only the facts relevant to our disposition of the case.

On January 12, 2004, Penzera pled guilty to two counts of unauthorized use of an access device in violation of 18 U.S.C. § 1029, and on June 15, 2004, she was sentenced to concurrent prison terms of 51 months on each count, three years’ supervised release, and $6,838.19 in restitution. II. In Davis, this Court adopted the policy of remanding for resentencing all cases pending on direct review when Booker was decided, in which the defendant was sentenced under the mandatory Sentencing Guidelines regime that existed prior to Booker. Davis, 407 F.3d at 165.

We explained that [bjecause the sentencing calculus was governed by a Guidelines framework erroneously believed to be mandatory, the outcome of each sentencing hearing conducted under this framework was necessarily affected. Although plain error jurisprudence generally places the burden on an appellant to demonstrate specific prejudice flowing from the District Court’s error, in this context — where mandatory sentencing was governed by an erroneous scheme — prejudice can be presumed. Id.

Our practice, therefore, is to vacate and remand all sentences imposed in which the District Court acted under the mandatory Guidelines framework, so that all sentencing issues may be properly resolved in the first instance by the District Court in light of Booker. III. Booker was decided on January 12, 2005, one year after Penzera’s guilty plea and six months after her sentence was imposed. Because Penzera was sentenced under the mandatory Guidelines framework, Davis requires that her case be returned to the District Court for resentencing.

Accordingly, we will vacate the judgment of the District Court and remand the case for resentencing in light of Booker.