UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-20099

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HOWARD E. EAST,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (H-00-CR-518-ALL) January 8, 2002 Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:1

Defendant-Appellant, Howard E. East (East), appeals from the

district court's refusal to hold an evidentiary hearing on his

motion to suppress and the sufficiency of the evidence supporting

his conviction. East was charged by indictment with possessing a

firearm after having been convicted of a crime punishable by

imprisonment for a term exceeding one year, in violation of 18

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. U.S.C. §§ 922(g)(1) and 924(a)(2). East filed a motion to suppress

the firearm, and a motion to dismiss the indictment on the grounds

that

(g) was unconstitutional both on its face and

as applied to East. The district court denied both motions without

a hearing.

Thereafter, East filed a motion to reconsider the denial of

the motion to suppress and to set an evidentiary hearing on the

motion. East then proceeded to a stipulated bench trial, after

which the district court found him guilty as charged in the

indictment. The district court sentenced East to serve 24 months

in the custody of the Bureau of Prisons and a three-year term of

supervised release. In addition, the court imposed the mandatory

$100 special assessment, which was waived because East was unable

to pay it.

We realize that evidentiary hearings are not granted as a

matter of course. Rather, these hearings are required only if

there are disputed material facts "necessary to the decision of the

motion." FED.R.CRIM.P. 41(c); United States v. Dean,

(5th Cir. 1996) (citing United States v. Harrelson,

(5th Cir. 1983)). After fully considering the respective

parties' briefing on the issues, carefully reviewing the entire

record, and hearing oral arguments in this case, we find that East

has sufficiently alleged that there are disputed material facts

necessary to the resolution of his motion to suppress. Therefore,

2 we VACATE the district court's conviction of East and the sentence

imposed upon him, and we REMAND for an evidentiary hearing

concerning East's motion to suppress the firearm.

3