United States v. Keith , 127 F. App'x 109 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY NATHANIAL KEITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
03-568-RDB)
Submitted: April 8, 2005 Decided: April 26, 2005
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Ricardo Daniel Zwaig, Assistant Federal Public Defender, Ellicott
City, Maryland, for Appellant. Thomas Michael DiBiagio, United
States Attorney, Harry Mason Gruber, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Nathanial Keith pled guilty on August 26, 2004, to
possession of a firearm after conviction of a felony, in violation
of 18 U.S.C. § 922(g)(1) (2000). The district court sentenced
Keith on November 19, 2004, over his objection based on Blakely v.
Washington, 124 S. Ct. 2531 (2004), to fifty-seven months of
imprisonment to be followed by three years of supervised release.
The district court also specified an alternative sentence of forty-
eight months of imprisonment pursuant to this court’s
recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.
2004) (order), opinion issued by 381 F.3d 316, 353-54 (4th Cir.
2004) (en banc), cert. granted and judgment vacated, 125 S. Ct.
1051 (2005).
Keith appealed, challenging the constitutionality of the
federal sentencing scheme in light of the Supreme Court’s decision
in Blakely v. Washington, 124 S. Ct. 2531 (2004).* The case was
held in abeyance pending the decision in United States v. Booker,
125 S. Ct. 738 (2005). That opinion has now issued, and applies
the Court’s reasoning in Blakely to the federal sentencing
guidelines.
Keith now moves for an expedited remand of this case to
the district court to allow implementation of the alternative
*
He also challenged the amount of credit given him for time
spent in state custody, but has now withdrawn that claim as
premature.
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sentence previously announced by the district court, a motion which
is unopposed by the Government. We grant the motion to allow the
district court to reconsider Keith’s sentence in light of the
Booker decision. Therefore, we affirm his conviction, vacate the
sentence imposed by the district court, and remand for
reconsideration of the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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