IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31367

c/w No.15-30703

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

THOMAS HENDERSON, also known as T. Henderson,

Defendant-Appellant

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CR-309-4

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. 

PER CURIAM:*

Thomas Henderson pleaded guilty to a single count of conspiracy to 

distribute and possess with the intent to distribute heroin and cocaine base 

and to a single count of conspiracy to possess and use firearms in furtherance 

of drug trafficking. He was sentenced to a total of 160 months of imprisonment. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2016

Lyle W. Cayce

Clerk

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After he filed a notice of appeal, the district court granted a motion to vacate 

his sentence on the basis that the probation officer incorrectly calculated the 

guidelines imprisonment range. We remanded the case, and the district court 

held a new sentencing hearing at which the district court upwardly departed 

from the recalculated guidelines range and imposed a sentence of 480 months 

in prison. Henderson appealed from the subsequent judgment. 

Henderson asserts that the district court lacked the authority to vacate 

his sentence and resentence him and, thus, his original sentence and judgment 

remains valid. He contends that no indicative ruling issued that permitted the 

district court to vacate his sentence and resentence him and that no statute or 

Federal Rule of Criminal Procedure enabled the resentencing. Henderson, who 

makes no argument as to the initial judgment, also contends that the grant of 

the upward departure at his resentencing violated his due process rights. The 

Government concedes that the district court lacked the authority to resentence 

Henderson and maintains that the initial sentence should be reinstated. Our

review of whether the district court had jurisdiction is plenary. Rutherford v. 

Harris County, Tex., 197 F.3d 173, 190 (5th Cir. 1999). 

The record supports that the district court lacked the authority to vacate 

Henderson’s sentence and resentence him. The filing of a notice of appeal from 

the original judgment deprived the district court of jurisdiction, see Griggs v. 

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), and the record does 

not establish that the district court issued an indicative ruling in accordance 

with Federal Rule of Criminal Procedure 37 and Federal Rule of Appellate 

Procedure 12.1. See FED. R. CRIM. P. 37(b); FED. R. APP. P. 12.1(a). Even if the 

actions of the district court could be construed as an implicit indicative ruling, 

the district court otherwise had no authority to vacate and alter Henderson’s 

sentence. The district court could not have acted pursuant to Federal Rule of 

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Criminal Procedure 35(a) because the vacation of the sentence and resulting 

resentencing occurred more than 14 days after the original sentence was orally 

pronounced. See FED. R. CRIM. P. 35(a), (c); United States v. Bridges, 116 F.3d 

1110, 1112-13 (5th Cir. 1997). Furthermore, the district court could not have 

acted under Federal Rule of Criminal Procedure 36 because calculating a new 

guidelines sentencing range on account of an error in applying the Sentencing 

Guidelines is not the type of error that is subject to correction under Rule 36. 

See United States v. Mackey, 757 F.3d 195, 200 (5th Cir. 2014); United States 

v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008). No other basis for vacating and 

altering Henderson’s sentence is applicable.

Therefore, the judgment imposed after resentencing is void and should

be vacated. The original judgment remains in effect and, because Henderson 

has not contested it, should be affirmed. See United States v. Reagan, 596 F.3d 

251, 254 (5th Cir. 2010). Given this disposition, we do not address Henderson’s 

claim that his amended sentence violated his due process rights.

AFFIRM ORIGINAL JUDGMENT; AMENDED JUDGMENT VOIDED.

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