United States v. Ramon Cantillo-Martinez

442 F. App'x 500

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 5, 2011
• Docket: 10-12955
• Status: Unpublished

Opinion

PER CURIAM:

Ramon Cantillo-Martinez (Cantillo) pleaded guilty to conspiring to affect interstate commerce by threats or violence by robbery in violation of 18 U.S.C. § 1951(a), attempting to interfere with interstate commerce by threats or violence by robbery also in violation of 18 U.S.C. § 1951(a), conspiring to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846, attempting to possess with intent to distribute five kilograms or more of cocaine also in violation of 21 U.S.C. §§ 841 and 846, and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Cantillo was sentenced to 180 months’ imprisonment. After he was sentenced, Cantillo filed a notice of appeal and his counsel has since filed an Anders brief.

While Cantillo’s appeal was pending the government filed a Rule 35(b) motion in the district court to reduce his sentence because of his substantial assistance to the government. The district court granted that motion and reduced his sentence to 110 months’ imprisonment. But because Cantillo’s appeal was still pending when the district court granted the motion, the district court did not have jurisdiction to reduce his sentence. See United States v. Russell, 776 F.2d 955, 956 (11th Cir.1985). Accordingly, we deny his counsel’s Anders motion, vacate Cantillo’s sentence and remand for the limited purpose of resentenc-ing in accordance with the district court’s attempted resentencing. Cf. United States v. Turchen, 187 F.3d 735, 743 (7th Cir.1999).

DENIED in part, VACATED in part and REMANDED.