Opinion
No. 07-6141.
April 28, 2009.
Susanna M. Voegeli, Sanford C. Coats, Mark A. Yancey, Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.
James T. Rowan, Rowan Ashbaker McKay PC, Oklahoma City, OK, for Defendant-Appellant.
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
Defendant-Appellant Dejuan Martez Covington pled guilty to one count of knowingly and intentionally distributing 5 or more grams of cocaine base (crack co-caine) in violation of 21 U.S.C. § 841(a)(1). Qualifying as a career offender, he was sentenced to 210 months' imprisonment followed by 4 years' supervised release. A divided panel affirmed the judgment. United States v. Covington, 284 Fed.Appx. 579 (10th Cir. 2008). Judge McConnell viewed the district court's remarks at sentencing as an incorrect statement that the Sentencing Guidelines were mandatory. Id. at 581-82.
Qualifying as a career offender, Mr. Covington's total offense level was 32 and his criminal history category was VI, yielding a Guidelines range of 210 to 262 months. Absent the career offender enhancement, his total offense level would have been 26, his criminal history category would have remained VI, and his Guidelines range would have been 120 to 150 months.
Mr. Covington filed a petition for a writ of certiorari, and the Supreme Court granted the writ and vacated our judgment for further consideration of the case in light of Nelson v. United States, ___ U.S. ___, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009). Covington v. United States, ___ U.S. ___, 129 S.Ct. 1612, 173 L.Ed.2d 990 (2009) (mem.). Upon consideration thereof, the case is REMANDED to the district court to vacate its judgment and resentence Mr. Covington, treating the Sentencing Guidelines as advisory and not affording any presumption of reasonableness to the Guidelines range.