United States v. Davis , 115 F. App'x 234 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-30273
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN WADE DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CR-20045-3
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jonathan Wade Davis appeals his sentence following a guilty
plea to possession with intent to distribute approximately 28 grams
of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Relying
primarily on Blakely v. Washington, 124 S. Ct. 2531 (2004), Davis
argues that the district court erroneously sentenced him based on
its determination that he was responsible for 2.4948 kilograms of
methamphetamine when he stipulated only to 28 grams as charged in
the bill of information. Davis's Blakely argument is foreclosed by
*
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this opinion should not be published and is not precedent except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. 04-30273
-2-
circuit precedent. See United States v. Pineiro, 377 F.3d 464, 473
(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)(No.
03-30437).
Davis also argues that the district court erred by not
sentencing him below the statutory minimum. The Government, which
had filed a motion for downward departure under U.S.S.G. § 5K1.1
prior to sentencing, concedes that the district court erroneously
concluded that it could not sentence Davis below the statutory
minimum. Our review of the record shows that the district court
did err as a matter of law in its belief that the sentence could
not be lower than the statutory minimum. See United States v.
Lopez, 264 F.3d 527, 531-32 (5th Cir. 2001). Because it is not
apparent whether the district court would have imposed the same
sentence absent the error, the case must be remanded for
resentencing. See United States v. Tello, 9 F.3d 1119, 1131 (5th
Cir. 1993).
AFFIRMED in part, VACATED in part, and REMANDED.