United States v. Deangelo Mitchell , 580 F. App'x 815 ( 2014 )


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  •               Case: 13-13451    Date Filed: 09/23/2014   Page: 1 of 3
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-13451
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:09-cr-20333-PCH-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DEANGELO MITCHELL,
    Defendant-Appellant.
    __________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (September 23, 2014)
    Before HULL, WILLIAM PRYOR and ANDERSON, Circuit Judges
    PER CURIAM:
    Nathan D. Clark, appointed counsel for Deangelo Mitchell, has moved to
    withdraw, supported by a brief prepared in compliance with Anders v. California,
    
    386 U.S. 738
    , 
    87 S. Ct. 1396
     (1967). Clark represented Mitchell after he filed a pro
    Case: 13-13451      Date Filed: 09/23/2014     Page: 2 of 3
    se motion to vacate his sentence of 96 months of imprisonment for committing an
    assault that resulted in a serious bodily injury, 
    18 U.S.C. § 113
    (a)(6). See 
    28 U.S.C. § 2255
    . The district court granted Mitchell’s motion to vacate and imposed a new
    sentence of 90 months. After Mitchell appealed and moved for the appointment of
    new counsel on appeal, we instructed the parties to address three questions involving
    the jurisdiction of the district court and of this Court. After careful review of the
    complex procedural history of this case, we conclude that the district court had
    jurisdiction to entertain Mitchell’s motion to vacate. We also have conducted an
    independent review of the entire record and considered the issues raised by Mitchell
    in his pro se filing. Because there are no arguable issues of merit, we grant counsel’s
    motion to withdraw, we deny as moot Mitchell’s motion to appoint new counsel, and
    we affirm Mitchell’s sentence.
    Although the district court lacked jurisdiction on April 27, 2011, to resentence
    Mitchell because this Court had yet to issue its mandate following its resolution of
    Mitchell’s direct appeal, Zaklama v. Mount Sinai Med. Ctr., 
    906 F.2d 645
    , 649 (11th
    Cir. 1990) (“[A] district court generally is without jurisdiction to rule in a case that is
    on appeal, despite a decision by this court, until the mandate has issued.”), the
    district court plainly had jurisdiction to entertain Mitchell’s motion to vacate that
    new sentence. See 
    28 U.S.C. § 2255
    (a). After the district court granted Mitchell’s
    motion to vacate his April 2011 sentence, the United States failed to appeal that
    2
    Case: 13-13451     Date Filed: 09/23/2014    Page: 3 of 3
    judgment. See United States v. Dunham Concrete Prods., Inc., 
    501 F.2d 80
    , 81 (5th
    Cir. 1974) (“This Circuit has long taken the view that . . . when an order is entered in
    the § 2255 proceeding which satisfies established notions of finality, either party
    prejudiced may appeal as in other civil actions.”). We now have jurisdiction to
    review Mitchell’s appeal of his new sentence following the disposition of his motion
    to vacate.
    Our independent review of the entire record and the issues raised by Mitchell
    reveals that counsel’s assessment of the relative merit of the appeal is correct.
    Because our examination of the entire record reveals no arguable issues of merit,
    counsel’s motion to withdraw is GRANTED, and Mitchell’s sentence is
    AFFIRMED. We also DENY as moot Mitchell’s motion for appointment of
    counsel.
    3
    

Document Info

Docket Number: 13-13451

Citation Numbers: 580 F. App'x 815

Judges: Hull, Pryor, Anderson

Filed Date: 9/23/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024