United States v. Magluta

198 F.3d 1265

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 23, 1999
• Docket: 98-4023
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _____________ ELEVENTH CIRCUIT 02/17/2000 THOMAS K. KAHN Nos. 98-4023 and 98-4024 CLERK _____________ D. C. Docket Nos. 96-00341-CR-JAL & 97-00102-CR

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

SALVADOR MAGLUTA, Defendant-Appellant.

---------------------------------------------- Appeals from the United States District Court for the Southern District of Florida ---------------------------------------------- (February 17, 2000)

ON PETITION FOR REHEARING

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

RICHARD MILLS, Senior District Judge:

* Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois, sitting by designation. Magluta was convicted and sentenced for illegally possessing various false

identification documents--18 U.S.C. § 1028, § 1425, § 1542, 1546, and 42 U.S.C. §

408--and for failure to appear in violation of 18 U.S.C. § 3146. Magluta appealed his

conviction in the false identification case, and the sentences received in both cases.

We previously affirmed the conviction in the false identification case, but

remanded for re-sentencing in both cases. See United States v. Magluta, 198 F.3d

1265, (11th Cir. 1999). Before the opinion was issued, Magluta moved to withdraw

all issues relating to the sentence he received in the false identification case, rendering

portions of our opinion moot. The court allowed Magluta to withdraw the issues.

Based on that ground, the government now moves for rehearing in order for the Court

to vacate the portions of the opinion which relate to the discussion of the withdrawn

issues.

The government’s petition is granted. The Court vacates section IV. B (pages

13-31 of the slip opinion) of its previous opinion in this case.

Magluta also petitions for rehearing and/or clarification with regard to this

Court’s review of the district court’s application of U.S.S.G. § 2J1.6. He requests that

the Court review the district court’s application under the de novo review and not the

more exacting “plain error” review. Alternatively, he requests a clarification that he

2 be allowed to argue on remand the subsequent amendment to the Sentencing

Guidelines, Amendment 579, that clarifies the application of § 2J1.6.

To the extent Magluta seeks a de novo review of the district court’s application

of §2J1.6, the petition is denied. However, since the applicable sentencing guideline

has been amended to clarify the issue after the district court imposed sentence, the

district court is directed to follow the amended application note. To that extent,

Magluta’s petition for clarification is granted.

The case is REMANDED to the district court for further proceedings consistent

with this opinion.