United States v. Magluta , 198 F.3d 1265 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
02/17/2000
THOMAS K. KAHN
Nos. 98-4023 and 98-4024 CLERK
_____________
D. C. Docket Nos. 96-00341-CR-JAL
& 97-00102-CR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR MAGLUTA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(February 17, 2000)
ON PETITION FOR REHEARING
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
RICHARD MILLS, Senior District Judge:
*
Honorable Richard Mills, Senior U. S. District Judge for the Central District
of Illinois, sitting by designation.
Magluta was convicted and sentenced for illegally possessing various false
identification documents--18 U.S.C. § 1028, § 1425, § 1542, 1546, and 42 U.S.C. §
408--and for failure to appear in violation of 18 U.S.C. § 3146. Magluta appealed his
conviction in the false identification case, and the sentences received in both cases.
We previously affirmed the conviction in the false identification case, but
remanded for re-sentencing in both cases. See United States v. Magluta, 198 F.3d
1265, (11th Cir. 1999). Before the opinion was issued, Magluta moved to withdraw
all issues relating to the sentence he received in the false identification case, rendering
portions of our opinion moot. The court allowed Magluta to withdraw the issues.
Based on that ground, the government now moves for rehearing in order for the Court
to vacate the portions of the opinion which relate to the discussion of the withdrawn
issues.
The government’s petition is granted. The Court vacates section IV. B (pages
13-31 of the slip opinion) of its previous opinion in this case.
Magluta also petitions for rehearing and/or clarification with regard to this
Court’s review of the district court’s application of U.S.S.G. § 2J1.6. He requests that
the Court review the district court’s application under the de novo review and not the
more exacting “plain error” review. Alternatively, he requests a clarification that he
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be allowed to argue on remand the subsequent amendment to the Sentencing
Guidelines, Amendment 579, that clarifies the application of § 2J1.6.
To the extent Magluta seeks a de novo review of the district court’s application
of §2J1.6, the petition is denied. However, since the applicable sentencing guideline
has been amended to clarify the issue after the district court imposed sentence, the
district court is directed to follow the amended application note. To that extent,
Magluta’s petition for clarification is granted.
The case is REMANDED to the district court for further proceedings consistent
with this opinion.
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