UNITED STATES of America, v. Elijah Shaheed KEMP, Appellant, 174 F. App'x 660

OPINION BECKER, Circuit Judge. Pursuant to a plea agreement, appellant Elijah Shaheed Kemp entered a plea of guilty to felony charges involving the distribution of narcotics. He was sentenced to 92 months imprisonment. Appellant challenges his sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 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 consideration of a Booker claim on plain error review, this Court stated that except in limited circumstances we will presume prejudice and direct a remand for re-sentencing 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.

We will therefore vacate the judgment and remand for re-sentencing.