                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 03-12855                   OCTOBER 20, 2005
                             Non-Argument Calendar              THOMAS K. KAHN
                           ________________________                 CLERK


                     D. C. Docket No. 99-00031-CR-3-CDL-4

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                       versus

KENNETH TYRONE SHAW,
a.k.a. Kay
a.k.a. Kim,

                                                              Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         _________________________

                                (October 20, 2005)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Kenneth Tyrone Shaw appeals his reduced 120-month sentence

for possession with intent to distribute cocaine base in an amount in excess of 50
grams, which sentence was imposed following the government’s motion to reduce

sentence pursuant to Fed. R. Crim. P. 35(b). Shaw argues that the order reducing

his sentence should be reversed because he was not given notice of the

government’s motion, an opportunity to be heard on the motion, or the right to

counsel.

          On appeal, Shaw argues that a court’s action on a Rule 35(b) motion for

reduction of sentence amounts to a re-sentencing, which gives the court discretion

to modify the sentence, and, therefore, the same protections afforded a defendant

during sentencing are necessary at the motion hearing. The government

acknowledges that it erred in its attempted service of the Rule 35(b) motion, and

submits that the district court’s order on the motion should be vacated and the case

remanded for reconsideration.

          Accordingly, the order of the district court is vacated and the matter

remanded for reconsideration. Representation of counsel that begins on appeal

continues automatically on remand; thus Shaw will have the assistance of counsel

on remand because this Court’s order appointing counsel for him will remain in

effect.

          VACATED AND REMANDED.




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