United States v. Robert Schultz

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 5, 2019
• Docket: 18-1744
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 18-1744 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Robert Oscar Schultz,

lllllllllllllllllllllDefendant - Appellant. ____________

Appeal from United States District Court for the Southern District of Iowa - Council Bluffs ____________

Submitted: May 23, 2019 Filed: June 5, 2019 [Unpublished] ____________

Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges. ____________

PER CURIAM.

Robert Schultz appeals the amended judgment entered by the district court1 in his criminal case following the grant of relief on one of the claims raised in his post-

1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. conviction proceeding under 28 U.S.C. § 2255. The district court vacated a conviction and a concomitant concurrent sentence and $100 special assessment. For reversal, Schultz argues that the district court was required to conduct a hearing before taking this action. We disagree.

Section 2255 gives district courts “broad and flexible remedial authority” to correct a sentence as appropriate. See United States v. Harrison, 113 F.3d 135, 137 (8th Cir. 1997). In this case, the district court made statements at the original sentencing hearing reflecting the court’s awareness of a potential, but likely inconsequential, double jeopardy issue, given that the concurrent sentences were triggered by a more serious offense. Under those circumstances, we reject Schultz’s request to vacate the district court’s amended judgment and remand for a plenary resentencing hearing. See United States v. Grimes, 702 F.3d 460, 469 (8th Cir. 2012); James v. United States, 476 F.2d 936, 937 (8th Cir. 1973) (per curiam).

The judgment is affirmed. ______________________________

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