United States v. Summers ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 01-11188
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
ROSE ELLA SUMMERS,
also known as Rosie Campos,
also known as Rosie Summers,
Defendant-Appellant-Cross-Appellee.
--------------------
AppealS from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CR-326-4-P
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Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Rose Ella Summers was convicted of (1) conspiracy to possess
with intent to distribute methamphetamine and (2) conspiracy to
commit money laundering. The district court determined that she
had an offense level of 40 and a criminal history score in
category I. Her Sentencing Guidelines range was thus 292-365
months’ imprisonment, and the district court initially sentenced
her to 292 months’ imprisonment for count one and a concurrent
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-11188
-2-
term of 240 months’ imprisonment for count two. This court
vacated the sentence and remanded upon determining that the
sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
At resentencing, Summers again had an offense level of 40
and a criminal history score in category I, and her Sentencing
Guidelines range was 292-365 months’ imprisonment. Overruling
the Government’s request to impose consecutive sentences, the
district court sentenced Summers to two concurrent terms of 240
months’ imprisonment for her count one and two convictions. Both
Summers and the Government appeal the sentence.**
Since the filing of the instant appeals, this court has
determined that the imposition of consecutive sentences under
U.S.S.G. § 5G1.2(d) is mandatory to achieve the total minimum
punishment under the Guidelines. See United States v. Garcia, __
F.3d __, 2003 WL 367746 *4 (5th Cir. Feb. 20, 2003, No. 01-
51150). The district court’s imposition of concurrent sentences
was error, the sentence is vacated, and the case is remanded for
resentencing in accordance with Garcia.
**
We note that there is a pending motion by the Government
for reconsideration of the sentence, that the motion was filed
prior to the notices of appeal, and that the district court
should rule on this motion before this court addresses the
appeal. See FED. R. APP. P. 4(b)(3)(B); United States v. Ibarra,
502 U.S. 1, 7 (1991)); United States v. Greenwood, 974 F.2d 1449,
1465-67 (5th Cir. 1992). However, in light of our recent
decision in United States v. Garcia, __ F.3d __, 2003 WL 367746(5th Cir. Feb. 20, 2003, No. 01-51150), it is clear that a ruling
on the motion for reconsideration would necessitate another
resentencing.
No. 01-11188
-3-
Summers’s argument that the district court abused its
discretion in denying her motion for a downward departure was not
raised in her previous appeal, was beyond the scope of this
court’s prior mandate, and should not have been addressed by the
district court. See United States v. Marmolejo, 139 F.3d 528,
531 (5th Cir. 1998).
SENTENCE VACATED. CASE REMANDED FOR RESENTENCING IN
ACCORDANCE WITH THIS OPINION.