Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2005

USA v. Hlinak
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3780




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Recommended Citation
"USA v. Hlinak" (2005). 2005 Decisions. Paper 159.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/159


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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-3780


                            UNITED STATES OF AMERICA


                                             v.

                                   JEFFREY HLINAK,
                                              Appellant




                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 04-cr-00091)
                     District Judge: Honorable William W. Caldwell




                     Submitted pursuant to Third Circuit LAR 34.1(a)
                                  November 14, 2005

                Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                                (Filed December 6, 2005)

                               OPINION OF THE COURT




FUENTES, Circuit Judge.

       Appellant Jeffrey Hlinak’s response to this Court’s Order dated March 7, 2005

regarding the applicability of United States v. Booker, 

(2005), states that he
“challenges only his sentence.” Pursuant to said Order, such a statement is to be

“construed as waiving any issues related to the conviction.” We therefore address only

the sentencing issue. In United States v. Davis, 

(3d Cir. 2005) (en banc)–an

opinion relating to the denial of a government petition for rehearing en banc concerning a

Booker claim on plain-error review–this Court stated that except in limited circumstances,

we will presume prejudice and direct a remand for resentencing 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. Having determined that the

sentencing issues appellant raises are best determined by the District Court in the first

instance, it is ORDERED and ADJUDGED that the Appellant’s request for summary

remand is GRANTED. The Appellant's sentence is VACATED and this matter is

REMANDED for resentencing in accordance with Booker.