OpenJurist

5 F3d 1383 United States v. Franklin

5 F.3d 1383

UNITED STATES of America, Plaintiff-Appellee,
v.
Ervin Lee FRANKLIN, Defendant-Appellant.

No. 91-8989.

United States Court of Appeals,
Eleventh Circuit.

Oct. 13, 1993.

Paul S. Kish, Federal Defender Program, Inc., Atlanta, GA, for defendant-appellant.

John Davis, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia (No. 1:91-CR-2-1), Orinda D. Evans, Judge.

1

Before KRAVITCH, Circuit Judge, CLARK, Senior Circuit Judge, and PITTMAN*, Senior District Judge.

BY THE COURT:

2

Appellant's and appellee's joint motion for withdrawal of the September 22, 1992 opinion, published at 972 F.2d 1253, is granted.

3

Appellant's and appellee's joint motion for an order affirming appellant's conviction, vacating appellant's sentence and remanding for resentencing pursuant to 18 U.S.C. Sec. 924(a)(2), with instructions that the district court not apply the provisions of 18 U.S.C. Sec. 924(e), is granted.

4

Appellant's and appellee's joint motion that the appellee's petition for rehearing be denied as moot is granted.

*

Honorable Virgil Pittman, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation