Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-26-2005
USA v. Fetzner
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3692
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Recommended Citation
"USA v. Fetzner" (2005). 2005 Decisions. Paper 1316.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1316
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-3692
___________
UNITED STATES OF AMERICA
vs.
DONALD NICHOLAS FETZNER,
Appellant.
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 02-cr-00006E)
District Judge: The Honorable Sean J. McLaughlin
___________
Submitted Under Third Circuit LAR 34.1(a)
June 24, 2004
BEFORE: NYGAARD, McKEE, and CHERTOFF,* Circuit Judges.
* This case was submitted to the panel of Judges Nygaard, McKee, and
Chertoff. Judge Chertoff resigned after submission, but before the filing of the opinion.
The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
(Filed: April 26, 2005)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This Court, by opinion filed August 11, 2004, affirmed the District Court’s
judgment of conviction and sentence. On August 13, 2004, this Court vacated the
opinion and on October 26, 2004, held the case C.A.V. pending decision by the U.S.
Supreme Court in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).
Appellant David Fetzner pleaded guilty to one count of conspiracy to defraud the
United States of income tax revenues in violation of 18 U.S.C. § 371. Now, Fetzner
challenges his sentence under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005). We reaffirm all portions of our prior decision with respect to the conviction.
However, having determined that the sentencing issues appellant raises are best
determined by the District Court in the first instance, we vacate the sentence and remand
for resentencing in accordance with Booker.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge