United States v. Kimberly Ann Coleman

Coleman challenges her sentence and requests that it be vacated. She claims that the district court was without jurisdiction to sentence because the sentencing hearing was held before this court issued its mandate disposing of her appeal. Coleman’s sentence was not entered on the district court docket until after this court’s mandate was received and docketed.

Following judgment n.o.v. for Coleman, this court, 656 F.2d 509 , reversed and remanded for sentencing. The mandate should have issued November 26, 1981, but did not issue until December 2, 1981. The district court held the sentencing hearing and orally sentenced Coleman on November 30, 1981. Coleman’s counsel agreed to proceed with the hearing at that time. The district court received this court’s mandate December 7, 1981, and entered it on the docket sheet December 8, 1981. The sentence rendered by the trial court was entered on the district court docket December 14, 1981.

This case is not controlled by Berma n v. United States, 302 U.S. 211 , 58 S.Ct. 164 , 82 L.Ed. 204 (1937). While Berman establishes that a district court cannot re-sentence a defendant during the pendency of an appeal, it does not indicate at what…