Custer revisited

In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court (Tjoflat, Dubina, Marcus), on a petition for panel rehearing, the Court vacated Custer’s sentence and remanded for resentencing consistent with the Supreme Court’s opinion in Booker. The Court noted that its prior decision rejecting Custer’s challenge to his sentence came down shortly before the Supreme Court decided Booker. The Court noted that Custer had raised Booker-type challenges to his sentence in his initial brief, had preserved the issue in the district court, and not waived the issue in his plea agreement.