UNITED STATES of America v. Hassan THOMAS, Appellant, 173 F. App'x 177

OPINION OF THE COURT RENDELL, Circuit Judge. Hassan Thomas raises a challenge based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to the sentence he received following his guilty plea on charges of distributing an unspecified quantity of crack cocaine. He was sentenced to 176 months after the District Judge found that the proper drug amount for sentencing purposes was between 50 and 150 grams. Because a defendant convicted on a drug offense cannot be sentenced until a drug amount is determined, see U.S.

Sentencing Guidelines Manual § 2D1.1, Thomas’s guilty plea alone did not support any sentence. Thus, the amount determined by the District Court was necessarily a fact that enhanced Thomas’s sentence beyond the “maximum authorized by the facts established by a plea of guilty.” Booker, 125 S.Ct. at 756. After Booker, such facts may be found by the District Judge, but only if the sentencing guidelines are applied in an advisory manner. Id. at 764-68 Accordingly, we will vacate Thomas’s sentence and remand for resentencing in accordance with Booker. See United States v.

Davis, 407 F.3d 162, 164 (3d Cir.2005) (en banc).