IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals Fifth Circuit FOR THE FIFTH CIRCUIT FILED _____________________ April 29, 2005 No. 04-51060 _____________________ Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. CHARLES PHELPS, JR also known as, Dave Smith also known as, Mr D Defendant - Appellant --------------------- Appeal from the United States District Court for the Western District of Texas, Waco 6:03-CR-197-6 --------------------- Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

IT IS ORDERED that Appellee’s unopposed motion to vacate the sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee’s unopposed motion to remand the case to the Western District of Texas, Waco Division for resentencing is GRANTED.

IT IS FURTHER ORDERED that Appellee’s alternative request for an extension of time to file the Appellee’s brief 14 days from the denial of Appellee’s motion to vacate and remand is MOOT.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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