McBride v. U.S.

Full title: LAVAR DEMORIS McBRIDE, v. UNITED STATES OF AMERICA

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Oct 6, 2011

Case No. 8:11-cv-1970-T-30AEP, Criminal Case No. 8:10-cr-25-T-30AEP (M.D. Fla. Oct. 6, 2011)

Opinion

Case No. 8:11-cv-1970-T-30AEP, Criminal Case No. 8:10-cr-25-T-30AEP.

October 6, 2011

ORDER

JAMES MOODY JR., District Judge

On August 29, 2011, Lavar Demoris McBride's ("McBride") filed an unopposed motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (hereinafter "motion" or "motion to vacate") (Doc. cv-1; cr-69). The motion to vacate asserted that pursuant to United States v. Rojas, 645 F.3d 1234 (11^th Cir. 2011), McBride was entitled to resentencing because the Court did not apply the provisions of the Fair Sentencing Act of 2010 ("FSA") at his December 16, 2010 sentencing. In Rojas, the Eleventh Circuit held that the FSA applies to all defendants sentenced for crack cocaine offenses on or after August 3, 2010. Therefore, both McBride and the Government agreed that pursuant to Rojas, McBride should be resentenced under the FSA.

On October 4, 2011, the Court granted McBride's unopposed motion to vacate, and reduced his sentence from 120 months imprisonment and 96 months supervised release, to 37 months imprisonment and 72 months supervised release (Doc. cv-4). In granting the motion, the Court concluded that pursuant to Rojas, McBride was sentenced in violation of the FSA (Id.).

Subsequent to the Court's entry of the order granting McBride's motion to vacate, the Eleventh Circuit vacated its opinion in Rojas on October 4, 2011, and will rehear Rojas en banc. See United States v. Rojas, No. 10-14662 (October 4, 2011). Therefore, Rojas is no longer good law. Rojas was the controlling law on which the present unopposed motion to vacate was based.

Accordingly, the Court ORDERS that:

1. The Court's October 4, 2011 Order granting McBride's motion to vacate (Doc. cv-4) and the corresponding judgment (Doc. cv-5) are VACATED.

2. The Clerk shall reopen this case.

3. This case is STAYED.

4. The Clerk is directed to administratively CLOSE this case. Within thirty (30) days of the date the Eleventh Circuit enters its en banc decision in Rojas, McBride shall file a motion to reopen this case and, if necessary, an amended § 2255 motion to vacate.

DONE and ORDERED in Tampa, Florida.