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U.S. v. SMITH

No. 99-40844 Summary Calendar.

264 F.3d 518 (2001)

UNITED STATES of America, Plaintiff-Appellee, v. Mike SMITH, Jr., Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

August 28, 2001.

Attorney(s) appearing for the Case

Joseph R. Batte, Asst. U.S. Atty., Beaumont, TX, for Plaintiff-Appellee.

David Wesley Barlow, Law Office of David W. Barlow, Beaumont, TX, for Defendant-Appellant.

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:

This case comes to us on remand from the Supreme Court for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Based on our conclusion that the district court committed plain error in sentencing Smith under § 841(b)(1)(A) rather than § 841(b)(1)(C), we vacate Smith's sentence and remand for resentencing.

I.

A superseding indictment...

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