United States v. Bob Allen Locuson , 200 F. App'x 889 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 13, 2006
THOMAS K. KAHN
No. 05-15078
CLERK
________________________
D. C. Docket No. 04-00610-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOB ALLEN LOCUSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 13, 2006)
Before BLACK and HULL, Circuit Judges, and RYSKAMP,* District Judge.
PER CURIAM:
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
Bob Allen Locuson appeals his 97-month sentence imposed after he pled
guilty to conspiracy to possess with intent to distribute marijuana. He also
challenges the district court’s denial of a motion for continuance and motion for a
writ of habeas corpus ad testificandum at his sentencing hearing.
We have reviewed the record and determined that the district court did not
abuse its discretion in refusing to continue sentencing or in denying the petition
for writ of habeas corpus ad testificandum.
The district court accepted Locuson’s plea and adjudicated him guilty of the
lesser included offense of 21 U.S.C. § 841(b)(1)(D), for which the statutory
maximum is 60 months, rather than the charge in the superseding indictment of 21
U.S.C. § 841(b)(1)(A). There was confusion at the sentencing hearing and the
district court sentenced Locuson under § 841(b)(1)(C) to 97 months’
imprisonment. The Government concedes and we agree that Locuson’s sentence
exceeds the statutory maximum authorized under § 841(b)(1)(D).1
We vacate Locuson’s sentence and remand for the district court (1) to
amend the judgment to reflect Locuson’s plea to § 841(b)(1)(D) and (2) to
resentence Locuson in accordance with the statutory maximum of 60 months
1
Defense counsel did not object at the sentencing hearing and the Government did not
point out to the district court that defendant pled to the lesser included offense of § 841(b)(1)(D)
instead of (C).
2
considering the Guidelines advisory range2 and the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006).3
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
2
We have determined the district court correctly calculated Locuson's Guidelines range of
78-97 months for a level 28 offense and need not recalculate the Guidelines range at
resentencing.
3
We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the district court sentenced Locuson in
excess of the statutory maximum for the crime to which he pled. We also do not attempt to
decide now whether a particular sentence might be reasonable in this case.
3