IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10542 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELTON RAY BARNES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-178-1-Y -------------------- September 28, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Elton Ray Barnes has appealed his guilty-plea conviction and

sentence for possession of methamphetamine with intent to

distribute. Barnes argues that the district court plainly erred

by imposing a twenty-year mandatory minimum sentence pursuant to

(b)(1)(A) because the sentence is based on a

prior controlled-substance-felony conviction and a quantity of

drugs not alleged in the indictment. We pretermit consideration

of these arguments in light of the Government’s concessions that

Barnes was subject to a ten-year mandatory minimum sentence under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10542 -2-

(b)(1)(B) rather than a twenty-year sentence under

§ 841(b)(1)(A) and that the probation officer computed Barnes’

sentence based on an incorrect quantity of drugs. We VACATE

Barnes’ sentence and REMAND to the district court for

resentencing following the preparation of a new presentence

investigation report by the probation officer.

VACATED AND REMANDED.