Paul F. Born, III v. United States

129 F.3d 1267 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Paul F. BORN, III, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 97-1195. United States Court of Appeals, Seventh Circuit. Submitted Oct. 22, 1997.* Decided Oct. 27, 1997. Before FLAUM, RIPPLE and WOOD, Circuit Judges. ORDER [1] Paul F. Born III was convicted by a jury on April 29, 1988, of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and four counts of possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). Born was sentenced to twenty-three years' imprisonment for each of the five counts, to be served concurrently, ten years' supervised release, and fined $50.000 [2] On May 7, 1996, Born filed a motion to correct his sentence under Rule 35 of the Federal Rules of Criminal Procedure.1 The district court denied the motion, as well as Born's subsequent motion for reconsideration. This appeal followed [3] The Government has moved to dismiss Born's appeal because he is now deceased. By letter to the Honorable James F. Holderman, Jr., dated August 20, 1997, the Warden at the Federal Correctional Institution in Oxford, Wisconsin, informed the district court that Born died on August 19, 1997. Accordingly, we vacate the judgment of the district court, and remand the case to the district court with directions to dismiss the case as moot. See McClendon v. Trigg, 79 F.3d 557, 559 (7th Cir.1996), Hillman v. McCaughtry, 14 F.3d 350, 350 (7th Cir.1994) (per curiam). Footnotes [-s] * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary in this case; accordingly, the appeal is submitted on the briefs and the record. See Fed. R App. P. 34(a); Cir. R. 34(f) [1] This case is not governed by the United States Sentencing Guidelines because Born committed the offenses underlying his conviction before November 1, 1987