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rejecting facial overbreadth challenge to a prior version of the statute and stating, "We fail to see how a law that prohibits interstate travel with the intent to kill, injure, harass or intimidate has a substantial sweep of constitutionally protected conduct"
Summary of this case from United States v. MorelandOpinion
No. 02-4086.
April 6, 2005.
On Remand from the United States Supreme Court.
Edward F. Feran, Asst. U.S. Attorney, U.S. Attorney's Office, Cleveland, OH, for Plaintiff-Appellee.
Jay Milano, Milano Co., Rocky River, OH, for Defendant-Appellant.
ORDER
On June 11, 2004, this Court issued an opinion affirming Defendant Erik Bowker's convictions and sentence. United States v. Bowker, 372 F.3d 365 (6th Cir. 2004). On February 28, 2005, the U.S. Supreme Court granted Bowker's petition for a writ of certiorari, vacated the judgment of this Court, and remanded to this Court for further consideration in light of United States v. Booker, ___ U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Bowker v. United States, ___ U.S. ____, 125 S.Ct. 1420, 161 L.Ed.2d 181 (2005). For the reasons that follow, we reinstate our opinion of June 11, 2004, with the exception of Part IX, and remand to the district court for resentencing in accordance with Booker.
After a jury convicted Bowker of one count of interstate stalking, in violation of 18 U.S.C. § 2261A(1); one count of cyber-stalking, in violation of 18 U.S.C. § 2261A(2); one count of theft of mail, in violation of 18 U.S.C. § 1708; and one count of telephone harassment, in violation of 47 U.S.C. § 223(a)(1)(C), the district court determined that the applicable Sentencing Guidelines range, given Bowker's criminal history and an offense level of 19, was between 57 and 71 months. After making independent findings of fact, thedistrict court granted the government's motion for a three level upward departure in Bowker's offense level based on Guide-lines § 5K2.3 (extreme psychological injury to the victim), and imposed a 96 month sentence.
Bowker's sentence was imposed in violation of the Sixth Amendment because the 96 month term exceeds the maximum sentence that the Guidelines authorized based solely on the facts found by the jury beyond a reasonable doubt. Booker, 125 S.Ct. at 756. Accordingly, Bowker's sentence must be vacated. On remand, the district court must impose a reasonable sentence within the applicable statutory maximums for the crimes of conviction. Although the district court will not be bound by the Guidelines, the court nonetheless must "take account of the Guidelines together with other sentencing goals." Id. at 764 (citing 18 U.S.C. § 3553(a) (Supp. 2004)). Because the decision in Booker does not implicate any other issues concerning Bowker's conviction or sentence, we hereby reinstate the Court's opinion of June 11, 2004, with the exception of Part IX (Upward Departure for Extreme Psychological Harm to the Victim).
IT IS SO ORDERED.