United States v. Antonio Lovette

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 26, 2006
No. 05-15842 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00071-CR-ORL-28KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO LOVETTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 26, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Charles L. Handlin, appointed counsel for Antonio Lovette in this direct
criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED.
At the sentencing hearing, the district court stated that Counts 3, 5, 8, and
11, of the indictment were dismissed, as per Lovette’s plea agreement. This
statement was in error as Count 11 did not pertain to Lovette, and under the plea
agreement Counts 3, 5, 8, and 21 should have been dismissed at sentencing. The
district court’s written judgment correctly dismissed Counts 3, 5, 8, and 21.
Accordingly, we affirm Lovette’s conviction and sentence, but remand the case to
the district court for the limited purpose of allowing that court to correct the
inconsistency between the written judgment and the oral judgment. United States
v. Khoury, 901 F.2d 975, 978-9 (11th Cir. 1990) (remanding for resentencing due
to substantive error in oral judgment); United States v. Bates, 213 F.3d 1336, 1340
(11th Cir. 2000) (remanding for correction of clerical error in written judgment
under Rule 36); see also United States v. Portillo, 363 F.3d 1161, 1166 (11th Cir.
2004) (defendant’s presence not required for the court to correct a clerical error
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that does not substantially change his sentence).
AFFIRMED and REMANDED for correction
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