Opinion
No. 03-16158.
December 20, 2004.
Fred Haddad, Haddad Hester, P.A., Fort Lauderdale, FL, for Defendant-Appellant.
Terry Flynn, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of Florida (No. 02-00038-CR-1-MMP); Maurice M. Paul, Judge.
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); 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.").
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 presentence 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.