United States of America, Plaintiff-appellee, v. Mahmoud Eldick, Defendant-appellant, 393 F.3d 1354 (11th Cir. 2004)

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U.S. Court of Appeals for the Eleventh Circuit - 393 F.3d 1354 (11th Cir. 2004)

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.

Before BIRCH, KRAVITCH and CUDAHY* , Circuit Judges.


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);1  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.").


Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by designation


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