Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-16-2006
USA v. Carney
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2226
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Carney" (2006). 2006 Decisions. Paper 203.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/203
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2226
UNITED STATES OF AMERICA
v.
HASSAN CARNEY
a/k/a Boo-Boo
a/k/a Willie Timmons
a/k/a Shawn Carney
a/k/a William Butts
Hassan Carney,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 02-cr-00282
(Honorable John P. Fullam)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 8, 2006
Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges
(Filed: November 16, 2006)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Hassan Carney challenges his sentence in light of United States v. Booker, 543
U.S. 220 (2005). We will vacate the sentence and remand for resentencing. United
States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc).
I.
Hassan Carney pled guilty to a single count of possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). On February 25, 2003, the District Court sentenced
Carney to 120 months in prison, a three-year term of supervised release, a $1,000 fine,
and a special assessment of $100. At sentencing, the District Court determined Carney
had an offense level of 251 and a criminal history category of VI, which rendered a
sentencing range of 110 to 137 months. The District Court imposed the statutory
maximum sentence of 120 months.
Carney filed a timely appeal contending he was not afforded the right to allocution
and challenging other sentencing factors. We vacated the sentence and remanded on the
issue of proper allocution. See United States v. Carney, 88 F. App’x 534, 536 (3d Cir.
2004). On April 19, 2004, the District Court re-sentenced Carney to 115 months in
prison, with the other terms unchanged. Carney again filed a timely appeal.
II.
1
The District Court found a base offense level of 24, then assessed a two-level
enhancement for possession of a stolen firearm, a two-level enhancement for reckless
endangerment of a police office, and a three-level downward departure for acceptance of
responsibility.
2
The District Court twice sentenced Carney under the mandatory Sentencing
Guidelines framework in effect prior to Booker. In Davis, we established a policy to
vacate and remand all sentences, except in limited circumstances, for “defendants
sentenced under the previously mandatory regime whose sentences are being challenged
on direct appeal.” United States v. Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc). As
we reasoned in Davis, we cannot determine whether the District Court would have
imposed a different sentence under an advisory framework and therefore, the sentencing
issues raised here are best determined by the District Court in the first instance. Id. at
164–65, 166.
III.
We will vacate the sentence and remand for resentencing in accordance with
Booker. Davis, 407 F.3d at 165.
3