              Case: 13-13451    Date Filed: 09/23/2014   Page: 1 of 3


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-13451
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:09-cr-20333-PCH-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                          versus

DEANGELO MITCHELL,

                                                              Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                               (September 23, 2014)

Before HULL, WILLIAM PRYOR and ANDERSON, Circuit Judges

PER CURIAM:

      Nathan D. Clark, appointed counsel for Deangelo Mitchell, has moved to

withdraw, supported by a brief prepared in compliance with Anders v. California,

386 U.S. 738, 87 S. Ct. 1396 (1967). Clark represented Mitchell after he filed a pro
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se motion to vacate his sentence of 96 months of imprisonment for committing an

assault that resulted in a serious bodily injury, 18 U.S.C. § 113(a)(6). See 28 U.S.C.

§ 2255. The district court granted Mitchell’s motion to vacate and imposed a new

sentence of 90 months. After Mitchell appealed and moved for the appointment of

new counsel on appeal, we instructed the parties to address three questions involving

the jurisdiction of the district court and of this Court. After careful review of the

complex procedural history of this case, we conclude that the district court had

jurisdiction to entertain Mitchell’s motion to vacate. We also have conducted an

independent review of the entire record and considered the issues raised by Mitchell

in his pro se filing. Because there are no arguable issues of merit, we grant counsel’s

motion to withdraw, we deny as moot Mitchell’s motion to appoint new counsel, and

we affirm Mitchell’s sentence.

       Although the district court lacked jurisdiction on April 27, 2011, to resentence

Mitchell because this Court had yet to issue its mandate following its resolution of

Mitchell’s direct appeal, Zaklama v. Mount Sinai Med. Ctr., 906 F.2d 645, 649 (11th

Cir. 1990) (“[A] district court generally is without jurisdiction to rule in a case that is

on appeal, despite a decision by this court, until the mandate has issued.”), the

district court plainly had jurisdiction to entertain Mitchell’s motion to vacate that

new sentence. See 28 U.S.C. § 2255(a). After the district court granted Mitchell’s

motion to vacate his April 2011 sentence, the United States failed to appeal that

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judgment. See United States v. Dunham Concrete Prods., Inc., 501 F.2d 80, 81 (5th

Cir. 1974) (“This Circuit has long taken the view that . . . when an order is entered in

the § 2255 proceeding which satisfies established notions of finality, either party

prejudiced may appeal as in other civil actions.”). We now have jurisdiction to

review Mitchell’s appeal of his new sentence following the disposition of his motion

to vacate.

      Our independent review of the entire record and the issues raised by Mitchell

reveals that counsel’s assessment of the relative merit of the appeal is correct.

Because our examination of the entire record reveals no arguable issues of merit,

counsel’s motion to withdraw is GRANTED, and Mitchell’s sentence is

AFFIRMED. We also DENY as moot Mitchell’s motion for appointment of

counsel.




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