                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.                              No. 02-4284
VERNON LEIGH HAYES,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-96-154-MU)

                   Submitted: November 26, 2002

                       Decided: January 13, 2003

      Before WIDENER and GREGORY, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                              COUNSEL

James S. Weidner, Jr., Charlotte, North Carolina, for Appellant. Rob-
ert J. Conrad, Jr., United States Attorney, Jack M. Knight, Jr., Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. HAYES
                              OPINION

PER CURIAM:

   Vernon Leigh Hayes appeals the sentence of sixty months impris-
onment he received after he entered a guilty plea to conspiracy to pos-
sess with intent to distribute and distribute a quantity of dilaudid, 21
U.S.C. § 846 (2000). He contends that the district court erred in fail-
ing to enforce the terms of his oral plea agreement. For the reasons
explained below, we vacate the sentence and remand for resentencing.

   Hayes pled guilty under an oral plea agreement. At the guilty plea
hearing, the government attorney informed the magistrate judge that
the parties agreed that the statutory sentencing range was five to forty
years. The government further stated that Hayes had cooperated suffi-
ciently to receive a motion for downward departure under U.S. Sen-
tencing Guidelines Manual § 5K1.1, p.s. (2001), and that the
government planned to make a departure motion. The magistrate
judge replied, "Let me also put on this transcript the five to 40 agree-
ment, and the downward departure would be from that." The govern-
ment attorney responded affirmatively.

   Because it is not one of the drugs enumerated in 21 U.S.C.
§ 841(b)(1)(A) or (B), there is no mandatory minimum sentence for
an offense involving dilaudid; the statutory maximum sentence is
twenty years. 21 U.S.C. § 841(b)(1)(C). The presentence report stated
that the statutory penalty for Hayes’ offense was a maximum sentence
of twenty years under § 841(b)(1)(C). Nonetheless, at sentencing, the
parties and the district court proceeded on the understanding that the
statutory sentencing range was five to forty years based on the quan-
tity of dilaudid reasonably foreseeable to Hayes. The government
moved for a downward departure from the guideline range of 87-108
months, but refused to request the departure under 18 U.S.C.
§ 3553(e) (2000), which permits a departure below a statutory mini-
mum sentence. The district court accordingly departed from offense
level 29 to offense level 24, saying that was the best it could do. The
resulting guideline range was 51-63 months. The court imposed a sen-
tence of 60 months.

  On appeal, Hayes argues that the district court should have
enforced the oral plea agreement and acknowledged its authority to
                       UNITED STATES v. HAYES                         3
depart below the presumed statutory minimum. Because no statutory
minimum sentence applied, we need not decide whether the govern-
ment breached the oral plea agreement. However, when the sentenc-
ing court’s decision not to depart is based on a mistaken belief that
it lacks the legal authority to depart, the appeals court may review the
decision. United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). In
this case, the court did not understand its legal authority to depart
below sixty months. We therefore vacate the sentence and remand the
case for resentencing to permit the district court to reconsider its
departure decision.

   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                        VACATED AND REMANDED
