                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                              ________________________  U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             MARCH 6, 2012
                               Nos. 09-15522 & 09-15561
                                                               JOHN LEY
                              ________________________
                                                                CLERK

                        D. C. Docket Nos. 09-10025-CR-KMM,
                                 09-10016-CR-KMM

UNITED STATES OF AMERICA,


                                                                         Plaintiff-Appellee,

                                           versus

LARKIN BAGGETT,

                                                                      Defendant-Appellant.


                              ________________________

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

                                      (March 6, 2012)

Before DUBINA, Chief Judge, FAY, and KLEINFELD,* Circuit Judges.


       *
         Honorable Andrew J. Kleinfeld, Judge of the Ninth Circuit Court of Appeals, sitting by
designation.
PER CURIAM:

      Based upon the agreement of counsel and our review of the record, we

vacate the sentences and the order of restitution imposed by the district court and

remand with instructions. The Florida indictment did not charge a violation of 18

U.S.C. § 924(c) in Count I, and thus there was no plea of guilty to such a crime. In

addition, although the court had the authority to impose discretionary restitution as

a condition of supervised release pursuant to 18 U.S.C. §§ 3563(b)(2), 3583(d) and

U.S.S.G. § 5E1.1, it lacked the authority to order immediate restitution.

      Counsel agree that the defendant/appellant should be resentenced without

regard to § 924(c). It is also agreed that the issue of restitution must be revisited

under the appropriate statutes and sentencing guideline.

      Convictions affirmed; sentences of imprisonment and order of restitution

vacated; and, matter remanded with instructions.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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