Notice: This Summary Order May Not Be Cited As Precedential Authority, but May Be Called to the Attention of the Court in a Subsequent Stage of This Case, in a Related Case, or in Any Case for Purposes of Collateral Estoppel or Res Judicata. See Second Circuit Rule 0.23.united States of America, Appellee, v. Diane M. Coates, Defendant-appellant, 104 F.3d 350 (2d Cir. 1996)

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US Court of Appeals for the Second Circuit - 104 F.3d 350 (2d Cir. 1996) Sept. 26, 1996

Appearing for Appellant: Alan S. Rome, Montpelier, Vermont.

Appearing for Appellees: John M. Conroy, Assistant United States Attorney for the District of Vermont, Burlington, Vermont.

Before LUMBARD, MESKILL, and WINTER, Circuit Judges.

Diane M. Coates ("Coates") appeals from her sentence of 21 months imprisonment, three years supervised release, restitution of $473,154.28 and an assessment of $100, imposed by Judge Murtha after Coates pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341 and to misapplication of federal funds in violation of 18 U.S.C. § 666. At sentencing the district court raised sua sponte the question of whether it had the power to depart from the sentencing guidelines if it found that Coates did not personally profit from her crimes. Neither the parties nor the court were aware of any caselaw on this subject, and the district court concluded that it did not have such power.

Both parties agree that a remand for resentencing is appropriate. On remand the district court shall resentence appellant in light of Koon v. United States, 116 S. Ct. 2035.

We therefore remand for resentencing.