Filed: Nov. 18, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-10548 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GENICE STRIBLING, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-111-3-P - November 14, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Genice Stribling appeals from her resentencing following our earlier remand of her case. See United States v. Stribling,
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-10548 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GENICE STRIBLING, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-111-3-P - November 14, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Genice Stribling appeals from her resentencing following our earlier remand of her case. See United States v. Stribling, N..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10548
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENICE STRIBLING,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-111-3-P
--------------------
November 14, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Genice Stribling appeals from her resentencing following our
earlier remand of her case. See United States v. Stribling,
No. 99-11409 (5th Cir. Apr. 19, 2001) (unpublished). In our
earlier opinion, we vacated Stribling’s five-year term of
supervised release because it violated Apprendi v. New Jersey, 530
U.S. 466 (2000). We remanded the case for resentencing to a new
term of supervised release.
Id. at 6 n.***, 8.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Stribling contends that she was deprived of her right to be
present at resentencing. The Government contends that Stribling
was not actually resentenced. Rather, the Government asserts, her
sentence was modified and she had no right to be present at the
proceeding.
We specifically remanded the case for resentencing regarding
supervised release after vacating the original supervised release
term. Stribling, slip op. at 8. We distinguish between
proceedings “that modify an existing sentence and those that impose
a new sentence after the original sentence has been set aside.”
United States v. Moree, 928 F.2d 654, 655 (5th Cir. 1991). A
defendant has no right to be present at a modification hearing,
unless the modification makes the sentence more onerous. A
defendant has the rights to be present and to allocute at a
resentencing hearing, rights “which are of constitutional
dimension[.]”
Id. at 655-56.
Stribling’s case is distinguishable from cases like United
States v. Erwin, 277 F.3d 727 (5th Cir. 2001), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Oct. 21, 2002)(No. 02-6536). In
Erwin, a defendant was convicted of multiple offenses. We reversed
the conviction on a conspiracy count and found that the defendant
could not be retried for conspiracy, but affirmed in all other
respects. The district court amended the judgment, dismissing the
conspiracy count with prejudice. The modification reduced Erwin’s
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sentence. Erwin, 277 F.3d at 729, 731. We rejected Erwin’s
contention that the modified judgment should be set aside because
the district court did not give notice or hold a resentencing
hearing. Because the district court in Erwin’s case modified the
sentence in accordance with the reversal of the conspiracy count
and the affirmation in all other respects, he had no right to a
resentencing hearing at which he could be present.
Id. at 731.
In Erwin, the district court modified the judgment by deleting
the sentence for a reversed count. No new sentence was imposed.
See id. In Stribling’s case, no counts were reversed, but the
supervised release component of the sentence was vacated, and the
case was remanded for imposition of a new supervised release
sentence. Because Stribling was resentenced, she had a
constitutional right to be present at the resentencing proceeding.
Moree, 928 F.2d at 655-56.
Moreover, Stribling had a right under the Federal Rules of
Criminal Procedure to be present at her resentencing proceeding.
FED. R. CRIM. P. 43(a),(c)(4); see FED. R. CRIM. P. 35(a). Because
Stribling’s right to be present was violated, the three-year term
of supervised release is vacated and the case is remanded for
resentencing. See Moree, 928 F.2d at 656.
VACATED AND REMANDED.
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