IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10542
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELTON RAY BARNES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:98-CR-178-1-Y
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September 28, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Elton Ray Barnes has appealed his guilty-plea conviction and
sentence for possession of methamphetamine with intent to
distribute. Barnes argues that the district court plainly erred
by imposing a twenty-year mandatory minimum sentence pursuant to
21 U.S.C. § 841 (b)(1)(A) because the sentence is based on a
prior controlled-substance-felony conviction and a quantity of
drugs not alleged in the indictment. We pretermit consideration
of these arguments in light of the Government’s concessions that
Barnes was subject to a ten-year mandatory minimum sentence under
*
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that this opinion should not be published and is not precedent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. 99-10542
-2-
21 U.S.C. § 841(b)(1)(B) rather than a twenty-year sentence under
§ 841(b)(1)(A) and that the probation officer computed Barnes’
sentence based on an incorrect quantity of drugs. We VACATE
Barnes’ sentence and REMAND to the district court for
resentencing following the preparation of a new presentence
investigation report by the probation officer.
VACATED AND REMANDED.