Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1224




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Recommended Citation
"USA v. Kemp" (2006). 2006 Decisions. Paper 1437.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1437


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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 05-1224


                          UNITED STATES OF AMERICA,

                                          v.

                             ELIJAH SHAHEED KEMP,
                                          Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Criminal No. 03-cr-00321-2)
                      District Judge: Honorable Sylvia H. Rambo


                  Submitted Under Third Circuit LAR 34.1(a)
                               March 9, 2006
     Before: AMBRO, and BECKER, Circuit Judges and STAGG, District Judge*

                               (Filed: March 14, 2006 )




                                      OPINION




BECKER, Circuit Judge.


      *The Honorable Tom Stagg, United States District Judge for the Western District
of Louisiana, sitting by designation.
       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, 

,

(2005). 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 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.




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