United States v. Gabriel Alvaro Scaff-Martinez

Opinion

EXPEDITED [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 22, 2005 No. 04-16479 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 90-06036-CR-JAG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL ALVARO SCAFF-MARTINEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (June 22, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Gabriel Alvaro Scaff-Martinez appeals the district court’s November 10,

2004, order denying his § 3582(c)(2) motion for reduction of sentence. A district court does not have jurisdiction to rule in a case that is on appeal, despite a

decision by our court, until a mandate has been issued. Zaklama v. Mount Sinai

Med. Ctr., 906 F.2d 645, 649 (11th Cir. 1990). We did not issue our mandate as to

the initial appeal of Appellant’s § 3582 motion until November 16, 2004.

Therefore the district court lacked jurisdiction to enter its November 10, 2004

order. Appellant’s filing of a motion for reconsideration in the district court on

November 22, 2004, does not cure the district court’s initial jurisdictional

deficiency. Accordingly, the district court’s orders of November 10, 2004 and

February 3, 2005 are VACATED.