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No. 04-1331

In the Supreme Court of the United States

WAYNE ALLEN FLETCHER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 04-1331

WAYNE ALLEN FLETCHER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

Petitioner contends that his sentence under the federal Sentencing Guidelines was imposed in violation of the rule announced in United States v. Booker and United States v. Fanfan, 125 S. Ct. 738 (2005). In Booker and Fanfan, this Court held that the Sixth Amendment, as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the federal Sentencing Guidelines. Booker, 125 S. Ct. at 748-756 (Stevens, J., for the Court). In answering the remedial question

in those cases, the Court then applied severability analysis and held that the Guidelines are advisory rather than mandatory, and that federal sentences are reviewable for reasonableness. Booker, 125 S. Ct. at 757-769 (Breyer, J., for the Court). Accordingly, the appropriate disposition is to grant certiorari, vacate the judgment of the court of appeals, and remand the case for further consideration in light of Booker and Fanfan. The court of appeals can then decide what effect, if any, those decisions have on petitioner's sentence, taking into account any applicable doctrines of waiver, forfeiture, and harmless error.* See id. at 769.

PAUL D. CLEMENT
Acting Solicitor General

APRIL 2005

* The government waives any further response to the petition unless the Court requests otherwise.