United States v. Mahmoud Eldick

393 F.3d 1354, 2004 WL 2930817

Opinion

PER CURIAM:

Based upon the concessions and agreement of counsel at oral argument and in their briefs, we VACATE Eldick’s sentence and REMAND for re-sentencing. See 21 U.S.C. § 841(b)(1)(D); 1 United States v. Yost, 185 F.3d 1178, 1181 (11th Cir.1999), cert. denied, 529 U.S. 1108, 120 S.Ct. 1960, 146 L.Ed.2d 792 (2000) (“... we have held that when we vacate a sentence and remand for re-sentencing, the sentence becomes void in its entirety and the district court is free to revisit any rulings it made at the initial sentencing.”); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) (“A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent consistent with the Sentencing Guidelines.”).

1 . In the plea agreement, the parties stipulated that the drug involved in Count Two was a Schedule 3 opiate, which carried a five-year statutory maximum. The defendant was sentenced on the basis of the presenlence report which erroneously calculated the sentence on Count Two as if the drug was a Schedule 2 opiate, which carries a 20-year statutory maximum. The sentence rendered was plain error because it exceeded the statutory maximum.