[DO NOT PUBLISH]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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