United States v. Raymond Theopolis Clay ( 1993 )

14 F.3d 602
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond Theopolis CLAY, Defendant-Appellant.

No. 91-5409.

United States Court of Appeals, Sixth Circuit.

Dec. 8, 1993.

Before: MARTIN and JONES, Circuit Judges; and BROWN, Senior Circuit Judge.

ORDER

1

In this case the court granted en banc review of the issue raised by the defendant-appellant as to whether his prior misdemeanor convictions may be considered in calculating his criminal history under the Sentencing Guidelines, and if so whether the convictions are constitutionally valid. We granted en banc review pending the disposition of a similar issue in United States v. McGlocklin, No. 91-6121, --- F.3d ----, 1993 WL 356406 (6th Cir., Sept. 17, 1993) (en banc). In footnote 1 of that opinion the en banc court referred this case back to the hearing panel:

2

While we vacated the panel opinion in United States v. McGlocklin, 962 F.2d 551 (6th Cir.), reh'g en banc granted, 1992 WL 506092, 1922 U.S.App. LEXIS 16686 (6th Cir. July 12, 1992), we also reserved for en banc consideration this single issue in United States v. Clay, No. 91-5409, and United States v. Landrum, No. 91-5234. With our determination of this issue, Clay and Landrum are returned to the panels to which they originally were assigned.

3

The en banc decision of this Court in McGlocklin has now been filed. See McGlocklin, supra.

4

We now remand the issue of whether defendant's convictions are constitutionally valid for consideration in light of our decision in McGlocklin.1

5

Accordingly, it is so ORDERED.

1

On October 12, 1993, the Supreme Court granted certiorari in the case of Custis v. United States, 988 F.2d 1355 (4th Cir.1933), cert. granted 62 U.S.L.W. 3272, No. 93-5209 (Oct. 12, 1993), an opinion relied upon by the plurality in McGlocklin