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PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER ON REMAND FROM
THE UNITED STATES SUPREME COURT
(S. Ct. No. 04-7292)
(D.C. NO. 02-CR-40098-01-JAR)
Before TACHA, Chief Judge,
ANDERSON and BALDOCK,
Circuit Judges.
ANDERSON, Circuit Judge.
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.(*) United States v.
Nichols, 374 F.3d 959 (10th Cir. 2004), vacated by 125 S. Ct. 1082
(2005). The
Supreme Court summarily reversed and remanded our decision for further
consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). Nichols
v. United States, 125 S. Ct. 1082 (2005). We requested that the parties file
supplemental briefs on the applicability of Booker and subsequent Tenth Circuit
cases.
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 overlength brief
without seeking permission, we accept it as filed. We GRANT the government's
motion to remand.
Accordingly, our previous opinion affirming Nichols' conviction is
REINSTATED, and the case is REMANDED to the district court for resentencing.
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*.Nichols did not challenge his sentence in his
appeal to this court.
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