United States v. Meshack , 244 F.3d 367 ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 99-50669
____________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HUGH VON MESHACK; LAWAYNE THOMAS;
LINDA PARKER; TERRANCE IAN HODGES,
also known as Guda;
Defendants - Appellants.
Appeal from the United States District Court
For the Western District of Texas, Waco
March 7, 2001
ON PETITION FOR REHEARING
(Opinion, August 28, 2000, 5 Cir. 2000, ___F.3d___)
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for panel rehearing is GRANTED in part: We STRIKE
footnote 20 in our previous opinion and replace it with the following:
On remand, the district court must resentence Meshack pursuant to 21 U.S.C. §
841(b)(1)(C). Due to his prior convictions, Meshack may be resentenced to a
maximum of 30 years.
We also STRIKE the following text in Section III: “See United States v. Rios-Quintero, 204
F.3d 214, 215 (5th Cir. 2000) (reviewing for plain error even though the case the defendants relied
upon was not decided at the time of trial).” We substitute in its place: “See United States v. Johnson,
520 U.S. 461, 467, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997) (reviewing for plain error even
though the case on which the defendants relied had not been decided at the time of trial).”
Finally, we STRIKE the text in Sect ion III A beginning with “We decline to exercise our
discretion in this manner here because Hodges can show no meaningful benefit . . .” and ending with
“Thus, we find there was no plain error in Hodges’s sentence for marijuana possession.” In its place
we insert the following:
We decline to exercise our discretion in this manner here because Hodges can show no
meaningful benefit he would receive from vacating this sentence.19 Cf. United States v.
Williams, 183 F.3d 458, 464 (5th Cir. 1999) (“[L]eaving Williamson incarcerated for 30 years
when he should have been sentenced to no more than 15 under existing precedent, especially
when we gave the benefit of the legal rule to others appealing their convictions during that
time, seriously would affect the fairness, integrity and public reputation of judicial proceedings
by undermining the rule of law”). He will not serve less time as a result of resentencing on
this count. Moreover, he has not asserted that our decision not to correct the sentence will
have collateral consequences. Thus, we find there was no plain error in Hodges’s sentence
for marijuana possession.
______________________
19
Hodges cannot show that correcting the error would invalidate one of the convictions
against him, as the conceded error does not call Hodges’s conviction into question.
In all other respects, the petition for panel rehearing is DENIED.
ENTERED FOR THE COURT:
_________________________________
EMILIO M. GARZA
UNITED STATES CIRCUIT JUDGE
-2-