02-6401 -- U.S. v. Rice -- 04/28/2005

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PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.	No. 02-6401
MARK D. RICE, Defendant - Appellant.

ORDER ON REMAND FROM

THE UNITED STATES SUPREME COURT

(S. Ct. No. 04-5520)

(D.C. No. 02-CR-03-F)

Before EBEL, ANDERSON, and McCONNELL, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant/Appellant Mark D. Rice pled guilty to four counts relating to the production, transportation and possession of child pornography, and was sentenced to 262 months' imprisonment, followed by three years of supervised release, and was assessed $9,216.00 in restitution. We affirmed his conviction, but reversed his sentence and remanded for resentencing because the district court erroneously double-counted certain uncharged conduct in calculating his sentence under the United States Sentencing Commission, Guidelines Manual ("USSG"). United States v. Rice, 358 F.3d 1268 (10th Cir. 2004) ("Rice I"). The Supreme Court summarily reversed and remanded our decision for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). See Rice v. United States, 125 S. Ct. 1028 (2005). The parties have jointly requested that we remand this case for resentencing.

We accordingly VACATE our order dated April 14, 2005, directing the parties to file supplemental briefs, we REINSTATE all non-sentencing portions of our previous opinion ("Rice I"), as well as that portion of the opinion holding that the district court's double-counting in this case is prohibited under the Guidelines, and we REMAND for resentencing in accordance with Booker. The mandate shall issue forthwith.

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