USA v. Larkin Baggett, No. 09-15561 (11th Cir. 2012)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MARCH 6, 2012 Nos. 09-15522 & 09-15561 JOHN LEY ________________________ CLERK D. C. Docket Nos. 09-10025-CR-KMM, 09-10016-CR-KMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARKIN BAGGETT, Defendant-Appellant. ________________________ Appeals from the United States District Court for the Southern District of Florida _________________________ (March 6, 2012) Before DUBINA, Chief Judge, FAY, and KLEINFELD,* Circuit Judges. * Honorable Andrew J. Kleinfeld, Judge of the Ninth Circuit Court of Appeals, sitting by designation. PER CURIAM: Based upon the agreement of counsel and our review of the record, we vacate the sentences and the order of restitution imposed by the district court and remand with instructions. The Florida indictment did not charge a violation of 18 U.S.C. § 924(c) in Count I, and thus there was no plea of guilty to such a crime. In addition, although the court had the authority to impose discretionary restitution as a condition of supervised release pursuant to 18 U.S.C. §§ 3563(b)(2), 3583(d) and U.S.S.G. § 5E1.1, it lacked the authority to order immediate restitution. Counsel agree that the defendant/appellant should be resentenced without regard to § 924(c). It is also agreed that the issue of restitution must be revisited under the appropriate statutes and sentencing guideline. Convictions affirmed; sentences of imprisonment and order of restitution vacated; and, matter remanded with instructions. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. 2
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