UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. No. 95-5451

QUINTON D. RAINEY, a/k/a Q, Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. John A. MacKenzie, Senior District Judge. (CR-94-69)

Argued: June 6, 1996

Decided: October 15, 1996

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

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Vacated and remanded with instructions by unpublished per curiam opinion.

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COUNSEL

ARGUED: Fernando Groene, Assistant United States Attorney, Nor- folk, Virginia, for Appellant. Richard W. Hudgins, Newport News, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Norfolk, Virginia, for Appellant.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Quinton D. Rainey was convicted of conspiracy to distribute cocaine base and possession of cocaine base with the intent to distrib- ute, see

(a)(1), 846 (West 1981 & Supp. 1996); the district court sentenced him to 135 months imprisonment. The Government now appeals the refusal of the district court to impose the statutorily required mandatory minimum sentence of 20 years. See

(b)(1)(A) (West Supp. 1996). We summarily reverse and remand for resentencing before another district judge.

I.

Prior to trial, the Government filed an information pursuant to

(a)(1) (West 1981), certifying that in March 1993 Rai- ney was convicted of possession of cocaine with the intent to distrib- ute, a felony under Virginia law. See

(Michie 1996). Rainey raised no challenge to the§ 851(a)(1) certifi- cation, see

(b) (West 1981), and did not object to the proposed finding in the presentence report that he was accountable for in excess of 50 grams of cocaine base. However, at sentencing the district court refused to hear the Government's argument that imposi- tion of a mandatory minimum sentence of 20 years imprisonment was required by

(b)(1)(A) and instead sentenced Rainey to 135 months imprisonment. The Government appeals.

II.

Congress has provided that a defendant who is convicted of violat- ing

(a) must receive a sentence of at least 20 years imprisonment if the drug violation involves 50 grams or more of cocaine base and if the "person commits such a violation after a prior conviction for a felony drug offense has become final." 21 U.S.C.A.

2 § 841(b)(1)(A). There is no dispute that Rainey possessed the predi- cate felony drug conviction. Nor is there any dispute that Rainey's instant violation involved more that 50 grams of cocaine base. Indeed, on appeal, as before the district court, Rainey offers no argument that the 20-year mandatory minimum sentence should not have been imposed. Accordingly, we vacate the sentence imposed in clear viola- tion of a mandate of Congress and remand for resentencing before another district judge.

VACATED AND REMANDED WITH INSTRUCTIONS

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