United States of America, Plaintiff-appellee, v. Clarence Heath, Also Known As Hoopie, Defendant-appellant, 977 F.2d 583 (6th Cir. 1992)

ORDER

The defendant appeals the amended judgment of sentence entered on his guilty plea to conspiracy to possess with intent to distribute cocaine. That order sentenced the defendant to imprisonment for a term of "78 months, to run concurrent to the sentence the defendant is serving under 89-CR-80626 and pursuant to 5G1.3(b) of the Sentencing Guidelines." At the time of sentencing, the defendant had served 13 months of his other sentence, and argued that he should receive credit for those months. However, the Bureau of Prisons apparently has declined to credit the defendant for those months and believes the sentencing order to be ambiguous.

Accordingly, the defendant moves to remand this case to the district court for resentencing to clarify whether the 78 month sentence should be reduced by the 13 months previously served. The defendant represents that the government is in agreement with this position. The district court judge also has written to the defendant, indicating that he believed that the Bureau of Prisons would credit the defendant for the 13 months served, but recognizing that the order may be "ambiguous." The district judge also expresses the desire that this court remand the case to him for resentencing.

Therefore, it is ORDERED that the defendant's motion to remand this case to the district court for resentencing is granted. If any further review is sought, a new notice of appeal must be filed.