United States v. Cordell Nichols Also Known as Quinndell Johnson

410 F.3d 1186

UNITED STATES of America, Plaintiff-Appellee,
v.
Cordell NICHOLS also known as Quinndell Johnson, Defendant-Appellant.

No. 03-3284.

United States Court of Appeals, Tenth Circuit.

June 7, 2005.

Order on Remand from the United States Supreme Court (S.Ct.04-7292) (D.C. No. 02-CR-40098-01-JAR).

Anthony W. Mattivi, Office of the United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Stephen W. Kessler, Topeka, KS, for Defendant-Appellant.

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

STEPHEN H. ANDERSON, Circuit Judge.

1

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 ___ U.S. ___, 125 S.Ct. 1082, 160 L.Ed.2d 1054 (2005). The Supreme Court summarily reversed and remanded our decision for further consideration in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nichols v. United States, ___ U.S. ___, 125 S.Ct. 1082, 160 L.Ed.2d 1054 (2005). We requested that the parties file supplemental briefs on the applicability of Booker and subsequent Tenth Circuit cases.

2

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 over-length brief without seeking permission, we accept it as filed. We GRANT the government's motion to remand.

3

Accordingly, our previous opinion affirming Nichols' conviction is REINSTATED, and the case is REMANDED to the district court for resentencing.

Notes:

1

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