UNITED STATES of America v. Rashad ISHMAIL a/k/a Apple Rashad Ishmail, Appellant, 169 F. App'x 114

OPINION OF THE COURT SCIRICA, Chief Judge. Appellant Rashad Ishmail pled guilty to a single count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced Ishmail to 77 months in prison and three years supervised release, and imposed a $1,000 fine and a $100 special assessment. Ishmail timely appealed his sentence, but did not challenge his conviction or guilty plea. At sentencing, the District Court determined Ishmail had an offense level of 21 and criminal history category of VI, leading to a sentencing guidelines range of 77-96 months.

Ishmail’s offense level and criminal history category were based in part on the District Court’s finding that he had at least two prior convictions for controlled substance offenses. The District Court imposed a sentence of 77 months, but explicitly stated it would have imposed a lesser sentence of 48 months imprisonment were it not bound by the sentencing guidelines.

Ishmail contends that by considering his prior convictions in sentencing, the District Court violated his Fifth Amendment right to be subject to a maximum punishment based solely on facts charged in an indictment and his Sixth Amendment right to jury trial. He contends his sentence should be vacated and remanded for resentencing based solely on facts charged in the indictment and to which he pled guilty, and consistent with the holding of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,160 L.Ed.2d 621 (2005).

Having determined that the sentencing issues appellant raises are best determined by the District Court in the first instance, United States v. Davis, 407 F.3d 162, 166 (3d Cir.2005) (en banc), we will vacate the sentence and remand for resentencing in accordance with Booker. . The government contends Booker renders Ishmail’s objections to the District Court’s findings regarding prior convictions moot, but does not object to Ishmail's request for resentencing consistent with Booker.