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871 F2d 1089 United States v. Hamlett

871 F.2d 1089

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Lawrence HAMLETT, Defendant-Appellant.

No. 89-5195.

United States Court of Appeals, Sixth Circuit.

March 23, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL, Chief Judge and MERRITT and KENNEDY, Circuit Judges.

ORDER

The defendant appeals from the district court's judgment and sentence in this criminal case. 18 U.S.C. Sec. 3742(a)(1). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, the panel unanimously agrees that oral argument is not necessary. Fed.R.App.P. 34(a).

After a guilty plea, the district court convicted the defendant of one count of conspiracy to distribute cocaine. 21 U.S.C. Sec. 846. The Sentencing Reform Act of 1984 applied to this count. However, the judges of the Middle District of Tennessee had previously declared the Sentencing Reform Act to be unconstitutional. United States v. Williams, No. 3-88-00014 (M.D.Tenn. June 23, 1988) (en banc). Therefore, the judges of the Middle District were imposing sentences not under the Sentencing Reform Act, but rather under the old law.

The Supreme Court has now decided the case of Mistretta v. United States, 109 S.Ct. 647 (1989). In that case, the Court held that the Sentencing Reform Act was constitutional. Therefore, any sentences imposed under the old law must be vacated.

1

In the present case, the judgment recites that it was not imposed under the Sentencing Reform Act. Therefore, we must vacate the judgment of the district court and remand for sentencing.

2

The judgment of the district court is vacated and the case is remanded under Rule 9(b)(6), Rules of the Sixth Circuit, for further proceedings.