USA vs. Puentes, (5th Cir. 2000)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11297 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO PUENTES, also known as Bucho, also known as Mario Alberto Ceballos, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CR-408-14-P July 27, 2000 Before POLITZ, HIGGINBOTHAM and DeMOSS, Circuit Judges.

PER CURIAM: * Francisco Puentes appeals his sentence, contending that the district court plainly erred in imposing a minimum mandatory sentence of ten years because it is undisputed that he was involved with only 100 to 400 kilograms of marihuana.

The Government concedes that an error occurred requiring remand. It does not assert PuentesÂ’ waiver of the right to appeal as contained in the plea agreement.

The GovernmentÂ’s motion to file its supplemental brief should be and is GRANTED.

Puentes contends that the sentence imposed should be vacated. The Government suggests that the conviction and sentence should be vacated. We conclude that vacating the sentence and remanding for resentencing corrects the error presented by the parties. 1 Accordingly, PuentesÂ’ sentence is VACATED and the matter is REMANDED to the district court for resentencing based on PuentesÂ’ involvement with 100 to 400 kilograms of marihuana.

1 United States v. Ruiz, 43 F.3d 985 (5th Cir. 1995)

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