United States v. Dawis Gonzalez ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12956 SEPTEMBER 29, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cr-20964-PAS-4
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DAWIS GONZALEZ,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 29, 2011)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Maria Elena Pérez, appointed counsel for Dawis Gonzalez in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel has correctly assessed the relative merit of this appeal from the
judgment and commitment order entered in June 17, 2010. Because independent
examination of the entire record reveals no arguable issues of merit, counsel’s
motion to withdraw from representing Gonzalez in his direct appeal is
GRANTED, and the convictions and sentences imposed in the June order are
AFFIRMED. Nevertheless, because the district court lacked jurisdiction to enter
an amended judgment and commitment order on September 8, 2010, while the
present appeal was pending, the judgment in this case is VACATED. The matter
is now REMANDED for the limited purpose of allowing the district court to
consider the government’s motion to reduce Gonzalez’s sentences, and to re-enter
the amended judgment if it deems that action appropriate. See United States v.
Russell, 776 F.2d 955, 956 (11th Cir. 1985) (holding that the district court lacked
jurisdiction to entertain, during the pendency of an appeal, a motion filed pursuant
to a prior version of Rule 35(b)); see also United States v. Turchen, 187 F.3d 735,
743 (7th Cir. 1999) (reaching the same conclusion with respect to a motion filed
pursuant to the current version of Rule 35(b)).
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