Unpublished Dispositionpaul Gwin, Petitioner-appellant, v. United States of America, Respondent-appellee, 902 F.2d 1568 (6th Cir. 1990)

ORDER

These cases have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record, the briefs and the motions, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

On December 14, 1988, a judgment and commitment order was entered, sentencing petitioner to three years imprisonment followed by three years supervised release on each of four counts, with the sentences running concurrently. The order directed that petitioner receive credit for time served while awaiting trial. It also specified that the sentence was not imposed under the sentencing guidelines because the en banc district court had determined them to be unconstitutional.

On May 26, 1989, petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Respondent did not oppose resentencing. In an order entered November 28, 1989, the district court treated the 28 U.S.C. § 2255 motion as a notice of appeal under Fed. R. Crim. P. 35. The court declined to take action on the Rule 35 motion during the pendency of the appeal.

On appeal, petitioner asserts two grounds for his release: 1) upholding his sentence would allegedly allow petitioner's release as of December 25, 1989; and 2) a sentence imposed under the sentencing guidelines would have released petitioner in June 1989.

It is ORDERED that the appeals be, and they hereby are, remanded to the district court for resentencing of the petitioner under the sentencing guidelines which were held constitutional in Mistretta v. United States, 109 S. Ct. 647 (1989). Mandate shall issue forthwith. Rule 9(b) (6), Rules of the Sixth Circuit. Petitioner's motions for appointment of counsel and bail are hereby denied.