United States v. Nichols

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 7, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-3284
CORDELL NICHOLS also known as
Quinndell Johnson,

Defendant - Appellant.

ORDER ON REMAND FROM
THE UNITED STATES SUPREME COURT
(S. Ct. No. 04-7292)
(D.C. NO. 02-CR-40098-01-JAR)

Before TACHA , Chief Judge, ANDERSON and BALDOCK , Circuit Judges.

ANDERSON , Circuit Judge.

Defendant/Appellant Cordell Nichols was found guilty following a jury

trial of one count of possession with intent to distribute approximately 4.6

kilograms of heroin, in violation of 21 U.S.C. § 841(a), and one count of

conspiracy to distribute in excess of one kilogram of heroin, in violation of 21

U.S.C. § 846. He was sentenced to 360 months’ imprisonment, followed by ten
years of supervised release. We affirmed his conviction. 1
United States v.

Nichols , 374 F.3d 959 (10th Cir. 2004), vacated by 125 S. Ct. 1082 (2005). The

Supreme Court summarily reversed and remanded our decision for further

consideration in light of United States v. Booker , 125 S. Ct. 738 (2005). Nichols

v. United States , 125 S. Ct. 1082 (2005). We requested that the parties file

supplemental briefs on the applicability of Booker and subsequent Tenth Circuit

cases.

The government and the defendant have both agreed that this case should

be remanded to the district court for resentencing, and the government filed

“Appellee’s Confession of Booker Error and Motion to Remand for

Resentencing.” Although we note that appellant submitted an overlength brief

without seeking permission, we accept it as filed. We GRANT the government’s

motion to remand.

Accordingly, our previous opinion affirming Nichols’ conviction is

REINSTATED, and the case is REMANDED to the district court for

resentencing.

1
Nichols did not challenge his sentence in his appeal to this court.

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