Professional Documents
Culture Documents
No. 02-4091
Submitted:
Decided:
January 6, 2006
PER CURIAM:
Peter Kay Stern was convicted following a jury trial of
one count of conspiracy to submit false and fraudulent claims to
the Internal Revenue Service (IRS), one count of obstructing the
work of IRS agents, one count of bank fraud, two counts of
threatening a federal judge, and two counts of using the United
States Postal Service mail system to communicate threats to a
federal judge.
term
of
imprisonment,
release.
States
We
v.
affirmed
Stern,
(unpublished).
followed
his
No.
by
three
convictions
02-4091
(4th
years
and
of
supervised
sentence.
Cir.
Apr.
23,
United
2004)
the
sentence,
and
remand
to
the
district
court
for
decision
in
Booker,
his
sentence
violates
the
Sixth
- 2 -
The
Court
two
remedied
the
constitutional
violation
by
severing
Id. at
the
district
court
sentenced
Stern
under
the
2F1.1(b)(1)(M)
(1995)
because
the
intended
loss
exceeded
because
Stern
admitted
that
the
face
value
of
the
- 3 -
the
victims
were
federal
judges
and
the
offense
was
The facts
find
that
the
remaining
sentencing
enhancements,
combined offense level would have been 23. With a criminal history
category of I, Sterns guideline range would have been 46 to 57
months of imprisonment.
The
under
Booker,
we
find
that
Sterns
sentence
violates the Sixth Amendment, and also note that the district court
erred in treating the guidelines as mandatory.*
Because Stern
clearly maintained in both the district court and this court that
his enhancements should have been proved beyond a reasonable doubt
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), we find
that the issue has been preserved for appeal and does not require
plain error review.
Accordingly, we vacate Sterns sentence and remand the
case for resentencing in light of Booker.
On remand, the
Id.
the guidelines range, the court should explain its reasons for the
departure as required by 3553(c)(2).
Id.
- 5 -
prior opinion.
and
materials
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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