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No. 95-3837WM _____________

City of Kansas City, * * Appellee, * Appeal from the United States * District Court for the Western v. * District of Missouri. * James Frederick Newport, * [UNPUBLISHED] * Appellant. * _____________

Submitted: February 27, 1996

Filed: March 6, 1996 _____________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges. _____________

PER CURIAM.

James Frederick Newport filed a petition to remove to federal court state criminal proceedings pending against him in the Sixteenth Judicial Circuit of Missouri, Kansas City Municipal Division. The district court determined that removal was improper because Newport alleged no causal connection between his purported duty as a member of the United States Army Reserves and the pending charges for littering and disorderly conduct. The district court dismissed the petition. We agree with the district court that Newport was not entitled to removal. See Maryland v. Soper, 270 U.S. 9, 33 (1926); Mesa v. California, 489 U.S. 121, 131-32 (1989). The appropriate course of action, however, was not dismissal, but remand to the state court. See 28 U.S.C. § 1446(c)(4) ("If it clearly appears . . . that removal should not be permitted, the court shall make an order for summary remand."); 28 U.S.C. § 1446(c)(3) ("judgment of conviction [in the state criminal proceedings] shall not be entered unless the prosecution is first remanded"); Continental Cablevision of St. Paul, Inc. v. United States Postal Serv., 945 F.2d 1434, 1441 n.3 (8th Cir. 1991).

We thus vacate the district court's dismissal order and remand to the district court for remand to the state court. Newport's motion to expand the record is granted.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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