85 F.3d 632
UNITED STATES of America, Plaintiff-Appellee,
v.
Tommy L. RUTLEDGE, Defendant-Appellant.
No. 93-1122.
United States Court of Appeals, Seventh Circuit.
Submitted April 17, 1996.
Decided May 2, 1996.
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within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.
Before BAUER and FLAUM, Circuit Judges, and FOREMAN, District Judge*.
ORDER
On March 27, 1996, the Supreme Court reversed this court's decision in United States v. Rutledge, 40 F.3d 879 (7th Cir.1994), and remanded the case for further proceedings consistent with the Court's opinion. Rutledge v. United States. The Court held that the district court erred in entering separate judgments of conviction against, and imposing concurrent sentences on, Rutledge for violations of 21 U.S.C. § 848 (Continuing Criminal Enterprise) and 21 U.S.C. § 846 (Conspiracy) based on the same underlying agreement. As a result, the district court must vacate one of Rutledge's convictions and the concomitant sentence. Rutledge, (citation omitted). In addition, the United States must refund to Rutledge $50 in excess assessment that Rutledge paid to the government pursuant to 18 U.S.C. § 3013.
Therefore, this matter is remanded to the district court with the following instructions:
1. The district court shall vacate Rutledge's conviction and sentence under either the Continuing Criminal Enterprise Count or the Conspiracy Count of the indictment.
2. The district court shall direct the United States to refund to Rutledge the $50 in excess assessment that Rutledge paid to the United States.
The Honorable James L. Foreman, United States District Judge for the Southern District of Illinois, is sitting by designation