                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-13001         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      AUGUST 25, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 1:09-cr-00339-JTC-AJB-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

ERIC MICHAEL BROWN,

llllllllllllllllllll                                            l Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                      (August 25, 2011)

Before BARKETT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

         Eric Michael Brown appeals his 145-month total sentence after pleading

guilty to robbery, conspiracy to commit robbery, and illegal use of a firearm
during the commission of a violent felony. Following completion of the briefing

schedule, we stayed Brown’s appeal so that the district court could resolve a

motion for resentencing filed by Brown. We directed Brown to notify the Clerk of

this Court when the district court had ruled on that motion.

       On March 29, 2011, the district court granted Brown’s motion for

resentencing, but neither Brown nor the district court notified this Court that it had

done so. Instead, the district court held a resentencing hearing, entered a new

judgment and commitment order that reimposed the same 145-month total

sentence, and forwarded the new judgment and order to this Court. Brown now

requests that the appeal of his sentence proceed without any further briefing.

           However, we find that the district court lacked jurisdiction to resentence

Brown.1 Under our precedent, the filing of a notice of appeal acts to divest the

trial court of jurisdiction over the matters at issue in the appeal, except to the

extent that the trial court must act in aid of appellate review. Shewchun v. United

States, 797 F.2d 941, 942 (11th Cir. 1986). “More specifically, it is settled that

during the pendency of an appeal the trial court is without authority to modify a

       1
          We review a district court’s jurisdiction under a de novo or plenary standard of review.
See United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007); United States v. Diaz-Clark,
292 F.3d 1310, 1315 (11th Cir. 2002). Where a district court lacks jurisdiction to enter an order,
we have appellate jurisdiction not of the merits, but merely for the purpose of correcting the error
of the lower court in entertaining the suit. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct.
829, 832, 80 L.Ed. 1263 (1936).

                                                 2
sentence meted out after final judgment.” Id. (citing Berman v. United States, 302

U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1932)). Once divested of

jurisdiction, a district court’s authority is restored only upon remand from the

appellate court. See Wisecup v. James, 790 F.2d 841, 842 (11th Cir. 1986).

      In the instant case, our stay order directed the district court to decide

Brown’s resentencing motion. Accordingly, the order granting that motion was

properly entered in aid of appellate review. Once the resentencing motion was

resolved, however, the district court lacked authority to entertain further matters

regarding Brown’s sentences, since those sentences had been imposed in a final

judgment and were clearly at issue in the pending appeal. Accordingly, as

specified in this Court’s stay order, the proper course of action would have been to

notify the Clerk of this Court that the motion was resolved, and to await an order

remanding the case for further proceedings.

      Because the case was never remanded, we now vacate all actions taken by

the district court after March 29, 2011—including the issuance of the new

judgment and commitment order, as well as any oral rulings made at the

resentencing hearing. We remand the case for the purpose of allowing the district

court to formally resentence Brown on the record, and in a manner consistent with

any right he may have to be present at an ensuing proceeding. See United States v.

                                          3
Jackson, 923 F.2d 1494, 1496-97 (11th Cir. 1991) (discussing the scope of a

defendant’s right to be present for resentencing). Following resentencing, the

court should notify Brown of his right to appeal the new judgment subject to Rule

4(b) of the Federal Rules of Appellate Procedure, and, if either party chooses to

appeal, they should complete the record and ensure that all relevant portions are

included therein.

      VACATED AND REMANDED.




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