United States v. Robert Gary Craigo

993 F.2d 1086, 1993 U.S. App. LEXIS 11721, 1993 WL 167842

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 18, 1993
• Docket: 90-5351
• Status: Published

Opinion

ORDER

WIDENER, Circuit Judge.

On February 24, 1992, we stayed issuance of our mandate in this case, upon motion of the United States, but the United States did not file a petition for certiorari so our decision became final. As noted, however, our mandate had been stayed.

On May 4, 1992, the Supreme Court reversed our decision in United States v. Dunnigan, — U.S. -, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) which would have the effect of requiring a modification of our opinion in this ease. Our opinion affirmed Crai-go’s conviction but remanded for resentenc-ing in the light of our then controlling opinion in United States v. Dunnigan, 944 F.2d 178 (4th Cir.1991).

Our actions in this case are now controlled by Alphin v. Henson, 552 F.2d 1033 (4th Cir.1977) which holds that in circumstances just like these, the stay of our mandate leaves our judgment within the control of this court.

We are of opinion that the decision of the Supreme Court in United States v. Dunnigan, — U.S. -, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) should be applied to this case. The Supreme Court’s decision in Dun-nigan is consistent with the decision of the district court which is here under review.

It is accordingly ADJUDGED and ORDERED that Part II-B of our decision in this case, decided February 3,1992, 956 F.2d 65, shall be, and it hereby is, vacated.

It is FURTHER ORDERED that the sentence of the district court appealed from shall be, and it hereby is, affirmed.

It is FURTHER ORDERED that our decision in this case of February 3, 1992 shall be, and it hereby is, modified as set forth in this order; otherwise, it remains in full force and effect.

With the concurrences of SPROUSE and WARD, JJ.