     Case: 14-31367      Document: 00513536879         Page: 1    Date Filed: 06/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 14-31367                                   FILED
                                   c/w No.15-30703                               June 7, 2016
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS HENDERSON, also known as T. Henderson,

                                                 Defendant-Appellant




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:12-CR-309-4


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Thomas Henderson pleaded guilty to a single count of conspiracy to
distribute and possess with the intent to distribute heroin and cocaine base
and to a single count of conspiracy to possess and use firearms in furtherance
of drug trafficking. He was sentenced to a total of 160 months of imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31367     Document: 00513536879     Page: 2   Date Filed: 06/07/2016


                                  No. 14-31367
                                c/w No.15-30703

After he filed a notice of appeal, the district court granted a motion to vacate
his sentence on the basis that the probation officer incorrectly calculated the
guidelines imprisonment range. We remanded the case, and the district court
held a new sentencing hearing at which the district court upwardly departed
from the recalculated guidelines range and imposed a sentence of 480 months
in prison. Henderson appealed from the subsequent judgment.
      Henderson asserts that the district court lacked the authority to vacate
his sentence and resentence him and, thus, his original sentence and judgment
remains valid. He contends that no indicative ruling issued that permitted the
district court to vacate his sentence and resentence him and that no statute or
Federal Rule of Criminal Procedure enabled the resentencing. Henderson, who
makes no argument as to the initial judgment, also contends that the grant of
the upward departure at his resentencing violated his due process rights. The
Government concedes that the district court lacked the authority to resentence
Henderson and maintains that the initial sentence should be reinstated. Our
review of whether the district court had jurisdiction is plenary. Rutherford v.
Harris County, Tex., 197 F.3d 173, 190 (5th Cir. 1999).
      The record supports that the district court lacked the authority to vacate
Henderson’s sentence and resentence him. The filing of a notice of appeal from
the original judgment deprived the district court of jurisdiction, see Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), and the record does
not establish that the district court issued an indicative ruling in accordance
with Federal Rule of Criminal Procedure 37 and Federal Rule of Appellate
Procedure 12.1. See FED. R. CRIM. P. 37(b); FED. R. APP. P. 12.1(a). Even if the
actions of the district court could be construed as an implicit indicative ruling,
the district court otherwise had no authority to vacate and alter Henderson’s
sentence. The district court could not have acted pursuant to Federal Rule of


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    Case: 14-31367    Document: 00513536879     Page: 3   Date Filed: 06/07/2016


                                 No. 14-31367
                               c/w No.15-30703

Criminal Procedure 35(a) because the vacation of the sentence and resulting
resentencing occurred more than 14 days after the original sentence was orally
pronounced. See FED. R. CRIM. P. 35(a), (c); United States v. Bridges, 116 F.3d
1110, 1112-13 (5th Cir. 1997). Furthermore, the district court could not have
acted under Federal Rule of Criminal Procedure 36 because calculating a new
guidelines sentencing range on account of an error in applying the Sentencing
Guidelines is not the type of error that is subject to correction under Rule 36.
See United States v. Mackey, 757 F.3d 195, 200 (5th Cir. 2014); United States
v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008). No other basis for vacating and
altering Henderson’s sentence is applicable.
      Therefore, the judgment imposed after resentencing is void and should
be vacated. The original judgment remains in effect and, because Henderson
has not contested it, should be affirmed. See United States v. Reagan, 596 F.3d
251, 254 (5th Cir. 2010). Given this disposition, we do not address Henderson’s
claim that his amended sentence violated his due process rights.
      AFFIRM ORIGINAL JUDGMENT; AMENDED JUDGMENT VOIDED.




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