United States v. Marcus Fitzgerald Stevenson ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14504 JANUARY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00050-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS FITZGERALD STEVENSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 17, 2006)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Marcus Fitzgerald Stevenson appeals his reinstated 57-month sentence,
imposed upon resentencing, for interstate transportation in aid of racketeering, in
violation of 18 U.S.C. § 1952(a)(3). After review, we vacate Stevenson’s sentence
and remand for resentencing.
In a prior appeal, this Court affirmed the district court’s criminal history
calculation and concluded that there was no constitutional violation under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See United States v.
Stevenson, 131 F. App’x 248 (11 th Cir. 2005) (unpublished). However, in the prior
appeal, this Court also found statutory Booker error and thus vacated Stevenson’s
sentence and remanded for resentencing in light of Booker. On remand, the district
court resentenced Stevenson to the same 57-month sentence without a hearing or
an opportunity for Stevenson to allocute.
Because Stevenson’s original sentence was vacated in its entirety, the district
court erred by not granting him a hearing and affording him the opportunity to
allocute at resentencing. See United States v. Taylor, 11 F.3d 149, 151 (11 th Cir.
1994) (holding that a defendant’s rights, under Federal Rules of Criminal
Procedure 32 and 43, to be present at sentencing and to allocute “extends to
sentencing when the original sentencing package is vacated in its entirety on appeal
and a case is remanded for resentencing”); United States v. Jackson, 923 F. 2d
1494, 1496 (11th Cir. 1991) (holding that, when a sentencing “package” has been
2
vacated on appeal, the defendant’s presence at a hearing is necessary).
Additionally, although Stevenson’s guidelines range was correctly calculated, the
district court must still have a hearing to consult the factors in 18 U.S.C. § 3553(a)
as now required by Booker under an advisory guidelines system. We therefore
vacate Stevenson’s sentence and remand to the district court so that the district
court may hold a hearing, consult the factors in § 3553(a) as required by Booker
and provide Stevenson the opportunity to address the court prior to imposing a
sentence.
VACATED AND REMANDED WITH INSTRUCTIONS.
3