United States v. Johnny Lee Tucker

122 F.3d 1075, 1997 U.S. App. LEXIS 29395, 1997 WL 542073

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 1997
• Docket: 96-10311
• Status: Unpublished

Opinion

122 F.3d 1075

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Johnny Lee TUCKER, Defendant-Appellant.

No. 96-10311.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 25, 1997.**
Decided Aug. 28, 1997.

Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, Senior District Judge, Presiding

Before: SCHROEDER, FERNANDEZ and RYMER, Circuit Judges.

MEMORANDUM*

Federal prisoner Johnny Lee Tucker appeals the 135-month sentence imposed by the district court following Tucker's successful 28 U.S.C. § 225 § motion seeking to vacate the firearm portion of his conviction. Tucker contends the district court lacked jurisdiction to then resentence him for his remaining drug conviction and enhance his sentence under U.S.S.G. § 2D1.1.

We reject this contention in light of our recent opinion in United States v. Handa, 110 F.3d 42 (9th Cir.1997), as amended, No. 96-16468, slip op. 9151 (Aug. 4, 1997). Accordingly, the district court is

AFFIRMED.

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3