                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 30, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-50474
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FERMIN MENDEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:03-CR-1961-1-DB
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Fermin Mendez appeals the 65-month concurrent sentences

imposed by the district court after his guilty-plea convictions

for conspiracy to import marijuana; importation of marijuana;

conspiracy to possess with intent to distribute marijuana; and

possession with intent to distribute marijuana.     See 21 U.S.C.

§§ 841, 846, 952, 960, 963.    Mendez argues that the district

court erred in applying a U.S.S.G. § 3B1.1(c) enhancement to his

sentence based upon his management of a person who was not a


     *
       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this opinion should not be published and is not precedent except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.
                            No.04-50474
                                -2-

knowing participant in the offense.    He also argues for the first

time on appeal that his sentence violates Blakely v. Washington,

124 S. Ct. 2531 (2004).   He concedes that his Blakely argument is

foreclosed by United States v. Pineiro, 377 F.3d 464, 473 (5th

Cir. 2004), petition for cert. filed (U.S. July 14, 2004)

(No. 04-5263), but states that he is raising it to preserve it

for possible Supreme Court review

     The Sentencing Guidelines provide for a two-level upward

adjustment to a defendant’s offense level if he is a manager of

criminal activity involving fewer than five participants or the

offense is not otherwise extensive.    See U.S.S.G. § 3B1.1(c).

The commentary to U.S.S.G. § 3B1.1 provides that a “‘participant’

is a person who is criminally responsible for the commission of

the offense, but need not have been convicted.”    U.S.S.G. § 3B1.1

comment. (n.1).   The commentary further provides that to qualify

for an adjustment under U.S.S.G. § 3B1.1, the defendant must have

been the manager of one or more participants.     Id. at comment.

(n.2.); see also United States v. Gross, 26 F.3d 552, 555 (5th

Cir. 1994).   We review the district court’s interpretation and

application of U.S.S.G. § 3B1.1 de novo and its underlying

factual findings for clear error.     Pineiro, 377 F.3d at 474.

     Mendez and Erin Kay Montoya were charged with the above-

noted counts.   While Mendez pleaded guilty to the counts, Montoya

asserted that she had been duped by Mendez into bringing

marijuana from Mexico into the United States, and she pleaded
                           No.04-50474
                               -3-

guilty to misprision of a felony.    The presentence report (“PSR”)

recounted Montoya’s version of the events and recommended

enhancing Mendez’s base offense level under U.S.S.G. § 3B1.1(c)

because Mendez was the manager of the criminal activity.    Mendez

objected to the U.S.S.G. § 3B1.1 enhancement in part because

Montoya denied having any knowing involvement in the criminal

activity.

     Pursuant to Federal Rule of Criminal Procedure 32(i)(3)(B),

the court must rule on any disputed portion of the PSR or other

controverted matter or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because

the court will not consider the matter in sentencing.    We cannot

discern any express or implicit resolution by the district court

of the issue whether Montoya was a “participant” in the criminal

activity within the meaning of U.S.S.G. § 3B1.1.    In addition,

the PSR does not indicate that Montoya was criminally responsible

for the offenses to which Mendez pleaded guilty.    Accordingly, we

VACATE Mendez’s sentences and REMAND to the district court for a

resolution of this disputed issue.     See United States v. Maloof,

205 F.3d 819, 823-24 (5th Cir. 2000); United States v. Pofahl,

990 F.2d 1456, 1486 (5th Cir. 1993).

     AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR

RESENTENCING.
