     Case: 13-30359      Document: 00512642464         Page: 1    Date Filed: 05/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                  ___________________

                                     No. 13-30359
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                  Summary Calendar                          FILED
                                  ___________________                   May 27, 2014
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

EDGAR B. BRANCH,

              Defendant - Appellant
                           _______________________

                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-491
                             _______________________


Before KING, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*

       Edgar Branch filed a proceeding under 28 U.S.C. § 2255 challenging his
120-month sentence which was explicitly based upon the erroneous
assumption that the maximum sentence for his crime was 15 years. In fact, at
the relevant time, it was 10 years. In one hearing at which Branch was not
present (despite his attorney’s request that Branch be allowed to attend), the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30359    Document: 00512642464    Page: 2   Date Filed: 05/27/2014


                                No. 13-30359

district court granted the § 2255 application, vacated the original sentence,
and resentenced Branch to 96 months. United States v. Branch, Criminal
Action No. 07-10029, 2013 WL 489818 (W.D. La. Feb. 6, 2013). He now appeals
his new sentence based upon the deprivation of his right to be present; the
Government has conceded error and moves for summary disposition. We
conclude that a certificate of appealability is unnecessary for this appeal, as
Branch is not appealing the court’s § 2255 order but rather is appealing the
new sentence pronounced after the court granted Branch relief under § 2255.
Cf. Magwood v. Patterson, 561 U.S. 320 (2010); Andrews v. United States, 373
U.S. 334 (1963).

      We also agree with the parties that Branch had the right to be present
at the resentencing hearing. See United States v. Patterson, 42 F.3d 246, 248-
49 (5th Cir. 1994). Accordingly, we cancel oral argument, grant the
Government’s motion for summary disposition, vacate the sentence, and
remand for a new sentencing hearing at which Branch is present.
      MOTIONS GRANTED; SENTENCE VACATED; REMANDED.




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