United States v. O'Neal ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6153
BLANE WADE O'NEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert E. Payne, District Judge.
(CR-92-212, CA-96-779)
Submitted: November 20, 1997
Decided: December 11, 1997
Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Blane Wade O'Neal, Appellant Pro Se. Kevin Michael Comstock,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant appeals from the district court's order granting in part
and denying in part his motion filed under 28 U.S.C.A. § 2255 (West
1994 & Supp. 1997), and imposing a new sentence upon vacatur of
his conviction and sentence under 18 U.S.C.A. § 924(c)(1) (West
1976 & Supp. 1997). We have reviewed the record and the district
court's opinion and, to the extent that the district court granted Appel-
lant's motion to vacate his conviction under § 924(c) and denied his
motion on his ineffective assistance of counsel claims, we find no
reversible error. Therefore, we affirm in part on the reasoning of the
district court. United States v. O'Neal, Nos. CR-92-212; CA-96-779
(E.D. Va. Dec. 6, 1996).
However, the district court erred in imposing a new sentence with-
out having Appellant present and represented by counsel. See Mempa
v. Rhay, 389 U.S. 128, 135 (1967) (right to counsel extends to sen-
tencing); United States v. Nolley, 27 F.3d 80, 82 (4th Cir. 1994) (pres-
ence of defendant and counsel required upon resentencing after
vacatur of original sentence). Therefore, we vacate the sentence and
remand this case for resentencing with Appellant present and repre-
sented by counsel unless, after proper inquiry, Appellant waives his
right to counsel.
Accordingly, we grant a certificate of appealability, affirm in part,
vacate the sentence imposed, and remand this case for resentencing
with the Appellant present. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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