IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41543 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

versus

JESSIE WADE HALE,

Defendant-Appellee-Cross-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CR-42-3 - - - - - - - - - -

March 11, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Jessie Wade Hale appeals his sentence for

possession with intent to distribute methamphetamine arguing that

the district court erred by attributing 764.45 grams to him when

determining his offense level. The Government appeals the

district court’s failure to sentence Hale as a career offender

pursuant to U.S.S.G. § 4B1.1.

We have reviewed the record and briefs submitted by the

parties and hold that the district court erred in determining

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41543 -2-

that Hale’s two prior felony convictions were related, and thus,

holding that Hale was not subject to the career offender

guideline. See U.S.S.G. § 4A1.2(a)(2) & comment.(n.3); see also

United States v. Ford,

(5th Cir. 1993); United

States v. Garcia,

(5th Cir. 1992). Any error

with regard to the district court’s inclusion of the 764.45 grams

of methamphetamine in Hale’s offense level is harmless inasmuch

as it would not affect Hale’s sentence as a career offender

pursuant to U.S.S.G. § 4B1.1.

Accordingly, we VACATE Hale’s sentence and REMAND for

resentencing.

VACATED AND REMANDED.