IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60006 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLIFTON ANDERSON, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:96-CR-85-1-S -------------------- December 23, 2002 Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

This is the second appeal filed by Clifton Anderson, Jr.,

after his guilty plea to extortion under color of official right

in violation of

, and conducting and attempting

to conduct a financial transaction affecting interstate commerce

involving property represented by law enforcement officers to be

proceeds of unlawful activity in violation of

.

Pursuant to his first appeal, this court found that the district

court committed plain error in refusing to group the offenses for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-60006 -2-

sentencing purposes. Accordingly, this court entered an order

vacating Anderson’s 97-month sentence and remanding for

resentencing. Subsequently, the district court entered an order

amending the sentence it had previously imposed and ordering that

Anderson serve a period of 87 months of imprisonment.

Anderson argues that he was entitled to be present at his

resentencing so that he could be personally addressed by the

district court and allowed the opportunity to allocute. He

argues that because this court vacated his original sentence, the

district court was imposing a new sentence rather than merely

modifying it’s original sentence, thus, he had the right to be

present at the resentencing. The Government agrees with

Anderson’s argument and concedes that the district court erred.

“A defendant’s right to be present when the district court

alters his sentence depends on the type of action the district

court is taking.” United States v. Patterson,

(5th Cir. 1994). “If the district court is imposing a new

sentence after the original sentence has been set aside, the

defendant is entitled to be there.”

In United States v.

Moree,

(5th Cir. 1991), the defendant’s original

sentence was vacated by this court as a misapplication of the

Sentencing Guidelines, and the case was remanded to the district

court. The district court sentenced Moree in absentia to a

sentence which conformed with the findings made by this court on

appeal.

. Noting that the mandate specifically No. 02-60006 -3-

vacating the sentence had rendered Moree’s previous sentence null

and void, this court held that Moree was entitled to be present

and to allocute at his resentencing.

.

As in Moree, this court’s opinion specifically vacated

Anderson’s sentence and remanded to the district court for

resentencing. Because Anderson was entitled to be present and to

allocute at the resentencing, we VACATE the sentence imposed by

the district court and REMAND the cause for resentencing.

VACATE AND REMAND.