[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 95-6960
________________________
D. C. Docket No. CR-95-AR-91-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY MACK WEST, a.k.a. Teeny Man, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 26, 2000)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GODBOLD and RONEY, Senior Circuit Judges.*
PER CURIAM:
__________________________________
C
This decision is rendered by a quorum due to the retirement of then-Chief Judge Hatchett
on May 14, 1999. See, 28 U.S.C. § 46(d).
This case comes before us by order of the United States Supreme Court, which
has vacated the judgment of this Court as to appellant Roy Mack West, and remanded
the case for our reconsideration in light of Richardson v. United States, 119 S.Ct.
1707(1999). See United States v. West, 142 F.3d 1408 (11th Cir. 1998), vacated and
remanded, 119 S.Ct. 2042 (1999). In Richardson, the Supreme Court held that “a jury
in a federal criminal case brought under [21 U.S.C.] § 848 must unanimously agree
not only that the defendant committed some ‘continuing series of violations’ but also
that the defendant committed each of the individual ‘violations’ necessary to make
up that ‘continuing series.’” 119 S.Ct. at 1709.
West was convicted of both conducting a continuing criminal enterprise
(“CCE”)(Count 1) and being a member of the underlying drug conspiracy (Count 2).
At sentencing, the court vacated Count 2 as a lesser included offense of the CCE
conviction. See United States v. Nixon, 918 F.2d 895, 908 (11th Cir. 1990) (when
defendant convicted on both a CCE count and a conspiracy county, the Court will
merge the two offenses by vacating the conviction of the lesser included conspiracy
count). The government concedes that the jury instruction given was not in accord
with the requirements of Richardson and that West’s conviction on the CCE count
cannot stand, see also United States v. Riley, No. 96-4653 (11th
2
Cir.1999)(unpublished), and requests that this Court remand to the district court with
instructions to reinstate the vacated drug conspiracy count and resentence West.
Accordingly, we vacate West’s conviction for engaging in a continuing criminal
enterprise. Since the conspiracy conviction under Count 2 was vacated only because
it was a lesser included offense of the CCE conviction, and the CCE conviction no
longer stands, we remand this case to the district court with instructions to reinstate
West’s conspiracy conviction under Count 2 and resentence him.
VACATED AND REMANDED.
3