                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0627n.06

                                        Nos. 13-2022/2094                               FILED
                                                                                  Aug 13, 2014
                          UNITED STATES COURT OF APPEALS
                                                                              DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )       ON APPEAL FROM THE UNITED
                                               )       STATES DISTRICT COURT FOR
v.                                             )       THE WESTERN DISTRICT OF
                                               )       MICHIGAN
                                               )
FREDERICK SUTTON,                              )             OPINION
                                               )
       Defendant-Appellant.                    )
                                               )


BEFORE: NORRIS, ROGERS, and GRIFFIN, Circuit Judges.

       PER CURIAM. This case is before us for the second time. In United States v. Sutton,

433 F. App’x 364 (6th Cir. 2011), we remanded the matter to the district court for resentencing.

Defendant had pleaded guilty to a single count of bank robbery, 18 U.S.C. § 2113(a), and

received a sentence of 120 months of incarceration. In imposing that punishment, the district

court noted that “[o]f necessity, this sentence must be consecutive to the state sentence which

apparently has been imposed or is to be imposed as a result of the underlying convictions.” Id. at

365 (quoting sentencing transcript). As we pointed out, however, this pronouncement contained

two flaws: first, the court failed to recognize that it had the discretion not to impose consecutive




                                                   1
                                                                                 United States v. Sutton
                                                                                    Nos. 13-2022/2094


sentences; second, it lacked the authority to impose a federal sentence that runs consecutively to

a not-yet-imposed state sentence.1 Id.

       The district court entered an amended judgment on July 16, 2013, nearly two years after

our mandate issued. (R. 44, Amended Judgment, (Page ID 168)). In the judgment the district

court deleted any reference to a state court sentence. (Page ID 169.) Defendant filed a notice of

appeal on July 30, 2013. (Case number 13-2022).

       Despite that appeal, the district court entered a second amended judgment on August 8,

2013. (R. 49, Amended Judgment, (Page ID 185)). That judgment provided that “[t]he sentence

[of 120 months] shall run concurrently with any state court sentence being served.” (Page ID

186.) Defendant also appealed that judgment. (Case number 13- 2094).

       Prior to issuing these two amended judgments, the district court did not hold a sentencing

hearing, nor did it issue any order or opinion explaining these judgments. In short, the reasoning

of the district court on remand is limited to the sparse language of the judgments themselves.

       We must now decide whether, as defendant contends, a second remand to the district

court is required in order to allow it to explain its sentencing rationale. He also believes that his

right to due process was compromised by the two-year delay between our remand and

resentencing. We have held that “upon a general remand for resentencing, a defendant has a

right to a plenary resentencing hearing at which he may be present and allocute.” United States

v. Garcia-Robles, 640 F.3d 159, 161 (6th Cir. 2011). Moreover, the district court is obliged “to

state its reasons for the sentence ‘in open court.’” Id. Neither occurred in the instant case.


   1
    Since our opinion issued, the United States Supreme Court has made clear that a district
court retains the discretion to order that a federal sentence be served either concurrently or
consecutively to an as yet to be imposed state sentence. Setser v. United States, 132 S. Ct.
1463, 1466 (2012).
                                                                                  United States v. Sutton
                                                                                     Nos. 13-2022/2094


However, as the government points out, ours was a limited remand, and an opportunity for

allocution is not required at resentencing following a limited remand. United States v. Jeross,

521 F.3d 562, 585 (6th Cir. 2008).

       The government also notes that defendant received the relief that he sought in his original

appeal: concurrent sentences. The first amended judgment makes no mention of the state

sentence at all; the second provides that the federal sentence run concurrently to it. Hence, his

appeals are arguably moot because we cannot order any relief beyond what either of the

amended judgments provide.

       The government also contends that the second amended judgment is not before us

inasmuch as the notice of appeal from the first amended judgment deprived the district court of

jurisdiction. See United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (“It is well

settled that the filing of the notice of appeal with the district court deprives the district court of

jurisdiction to act in matters involving the merits of the appeal.”). Defense counsel does not

dispute this proposition but argues that the second amended judgment “suggests that the district

court believed the July 16 amended judgment was entered in error.” See Reply Brief at 2.

       The government’s arguments have a great deal of force. Defendant has not shown how

the regrettable two-year delay prejudiced him in any manner. The second amended judgment

would have granted defendant the relief that he originally sought in the form of concurrent

sentences. However, the filing of the notice of appeal deprived the district court of jurisdiction

to enter that judgment. While it would have been preferable had the district court entered an

order clarifying its sentencing rationale in order to aid our appellate review, we would be

comfortable in this instance in affirming its second amended judgment because that judgment

results in relief for defendant: concurrent state and federal sentences. But as the district court
                                                                                 United States v. Sutton
                                                                                    Nos. 13-2022/2094


lacked jurisdiction to enter that judgment, we will remand this case again so that the district court

can properly enter its August 8 amended judgment.

       The amended judgment of the district court entered on July 16, 2013, is vacated.

Because the district court lacked jurisdiction to enter a second amended judgment after an appeal

to this court had been taken, we dismiss the appeal docketed as case number 13-2094.
