Case: 09-40529 Document: 00513141767 Page: 1 Date Filed: 08/04/2015

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________ United States Court of Appeals Fifth Circuit No. 09-40529 FILED Conference Calendar August 4, 2015 ___________________ Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. BENNIE D. EMEARY, JR., Defendant – Appellant _______________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:05-CR-15 _______________________ Before DENNIS and ELROD, Circuit Judges: * PER CURIAM: ** IT IS ORDERED that the appellant’s motion for summary remand, which is unopposed by the appellee, is GRANTED.

Therefore, the appellant’s conviction is AFFIRMED, his sentence is VACATED, and this case is REMANDED to the district court for resentencing.

* This order is entered by a quorum pursuant to 28 U.S.C. § 46(d). **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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 09-40529 Document: 00513141767 Page: 2 Date Filed: 08/04/2015

No. 09-40529 In light of the circumstances of this case, the district court should proceed expeditiously.