UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8197
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARK STEVEN ROBERTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(September 22, 1993)
Before JONES, DeMOSS, Circuit Judges, and BARBOUR1, District Judge.
DeMOSS, Circuit Judge:
On November 14, 1991, Mark Steven Roberts and Keith Vernon
Hoster, working together, bought 16 ounces of amphetamine and 110
pounds of phenylacetic acid, a listed precursor chemical of
amphetamine, from undercover authorities in Hillsboro, Texas. They
were arrested.
By a grand jury indictment filed in the Waco Division of the
Western District of Texas on December 3, 1991, Roberts and Hoster
1
Chief District Judge of the Southern District of Mississippi,
sitting by designation.
were charged with conspiracy to possess with the intent to
distribute amphetamine. Pursuant to a plea agreement entered into
on February 4, 1992, Roberts waived indictment and pled guilty to
a superseding Information charging him with unlawfully possessing
with the intent to distribute amphetamine. Eight days later,
Hoster did the same.
Roberts and Hoster were sentenced under the Sentencing
Guidelines. The district court calculated their sentences based on
the amount of amphetamine and phenylacetic acid involved in the
subject transaction. In calculating the effect of the phenylacetic
acid on their base level offenses, the district court relied upon
U.S.S.G. § 2D1.1.
Hoster appealed his sentence, arguing, inter alia, that the
court's application of section 2D1.1 vis á vis the phenylacetic
acid conversion was erroneous. In a very thorough and well written
opinion, a panel of this court agreed and remanded Hoster's case to
district court for resentencing in accordance with the panel's
opinion. United States v. Hoster, 988 F.2d 1374, 1383 (5th Cir.
1993).
Roberts now appeals his sentence, alleging the same error
found by the panel in Hoster. In light of the panel decision in
Hoster, we are bound to remand to the district court for
resentencing in accordance with the direction provided therein.
CONVICTION AFFIRMED; SENTENCE VACATED; CAUSE REMANDED FOR
RESENTENCING.
c:br:opin:92-8197:cf 2