* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-10548

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GENICE STRIBLING,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:99-CR-111-3-P

--------------------

November 14, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Genice Stribling appeals from her resentencing following our

earlier remand of her case. See United States v. Stribling,

No. 99-11409 (5th Cir. Apr. 19, 2001) (unpublished). In our

earlier opinion, we vacated Stribling’s five-year term of

supervised release because it violated Apprendi v. New Jersey, 530

U.S. 466 (2000). We remanded the case for resentencing to a new

term of supervised release. Id. at 6 n.***, 8. 
2

Stribling contends that she was deprived of her right to be

present at resentencing. The Government contends that Stribling

was not actually resentenced. Rather, the Government asserts, her

sentence was modified and she had no right to be present at the

proceeding.

We specifically remanded the case for resentencing regarding

supervised release after vacating the original supervised release

term. Stribling, slip op. at 8. We distinguish between

proceedings “that modify an existing sentence and those that impose

a new sentence after the original sentence has been set aside.”

United States v. Moree, 928 F.2d 654, 655 (5th Cir. 1991). A

defendant has no right to be present at a modification hearing,

unless the modification makes the sentence more onerous. A

defendant has the rights to be present and to allocute at a

resentencing hearing, rights “which are of constitutional

dimension[.]” Id. at 655-56.

Stribling’s case is distinguishable from cases like United

States v. Erwin, 277 F.3d 727 (5th Cir. 2001), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. Oct. 21, 2002)(No. 02-6536). In

Erwin, a defendant was convicted of multiple offenses. We reversed

the conviction on a conspiracy count and found that the defendant

could not be retried for conspiracy, but affirmed in all other

respects. The district court amended the judgment, dismissing the

conspiracy count with prejudice. The modification reduced Erwin’s
g:\opin-sc\02-10548.opn.wpd 3

sentence. Erwin, 277 F.3d at 729, 731. We rejected Erwin’s

contention that the modified judgment should be set aside because

the district court did not give notice or hold a resentencing

hearing. Because the district court in Erwin’s case modified the

sentence in accordance with the reversal of the conspiracy count

and the affirmation in all other respects, he had no right to a

resentencing hearing at which he could be present. Id. at 731.

In Erwin, the district court modified the judgment by deleting

the sentence for a reversed count. No new sentence was imposed.

See id. In Stribling’s case, no counts were reversed, but the

supervised release component of the sentence was vacated, and the

case was remanded for imposition of a new supervised release

sentence. Because Stribling was resentenced, she had a

constitutional right to be present at the resentencing proceeding.

Moree, 928 F.2d at 655-56.

Moreover, Stribling had a right under the Federal Rules of

Criminal Procedure to be present at her resentencing proceeding.

FED. R. CRIM. P. 43(a),(c)(4); see FED. R. CRIM. P. 35(a). Because

Stribling’s right to be present was violated, the three-year term

of supervised release is vacated and the case is remanded for

resentencing. See Moree, 928 F.2d at 656.

VACATED AND REMANDED.