               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20853
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

CALVIN RAY ADAMS,

                                           Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
              USDC No. H-98-CV-421 (H-94-CR-282-4)
                       - - - - - - - - - -

                            June 7, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Calvin Ray Adams, federal prisoner # 66583-079, seeks a

certificate of appealability (COA) to appeal the denial of his 28

U.S.C. § 2255 motion.   Adams argues that he has been sentenced to

an illegal term of imprisonment.   He contends that the amount of

drugs for which he was held accountable falls far short of the

threshold amount for applying 21 U.S.C. § 841(b)(1)(A).    He

contends that the PSR showed that he was accountable for only

three transactions involving 1.24 grams of crack cocaine.    He


     *
        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that this opinion should not be published and is not precedent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.
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                                 -2-

argues that the district court erred in sentencing him to the

statutory minimum of 120 months’ imprisonment because the amount

required to invoke that provision is 50 grams.      He contends that

there is no statutory minimum sentence for 1.24 grams of cocaine

base.    Adams argues that his counsel was ineffective for failing

to object to the improper application of this statutory provision

and for failing to raise this issue on direct appeal.      He

contends that counsel’s error prejudiced him because it directly

caused him to be sentenced to an illegal sentence.      He asks that

his sentence be vacated and corrected to the applicable term of

imprisonment for 1.24 grams of cocaine base.

       Adams pleaded guilty to conspiracy under 21 U.S.C. § 846.

The penalties are set forth in 21 U.S.C. § 841(b) and are

determined by the quantity of drugs involved.      § 846; United

States v. Ruiz, 43 F.3d 985, 988 (5th Cir. 1995).      Section

841(b)(1)(A) provides that violations involving 50 grams or more

of cocaine base are punishable by a term of imprisonment of not

less than 10 years or more than life.      § 841(b)(1)(A)(iii);

United States v. Watch, 7 F.3d 422, 426 (5th Cir. 1993).         For

offenses involving five grams or more of cocaine base, the

penalty is not less than five years nor more than 40 years.

§ 841(b)(1)(B)(iii).    For violations involving less than five

grams of cocaine base, there is no minimum term of imprisonment

and the maximum is 20 years.    § 841(b)(1)(C); Watch, 7 F.3d at

426.    The quantity of drugs is not an element of the offense and

is relevant only for sentencing purposes.      Watch, 7 F.3d at 426-

27.
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                                 -3-

      The plea agreement did not mention the amount of cocaine

base alleged to be involved in the conspiracy to which Adams

pleaded guilty.   At the rearraignment, the district court

informed Adams that his penalty range was a term of imprisonment

from 10 years to life.    Again, no mention was made of the amount

of cocaine allegedly involved.    During the discussion of the

factual basis for the plea, the facts pertaining specifically to

Adams showed that he was a fairly heavy user of crack cocaine.

Adams had earlier admitted that he was involved with sales to

informants on at least two occasions, but he stated that he never

bought that much because he did not have that much money to buy

it.   He stated that he was a heavy user and that he bought it

because he was a user.

      The PSR contained 184 paragraphs describing the offense

conduct in this conspiracy.    Adams’ involvement was contained in

only three paragraphs.    Adams distributed .46 grams of crack

cocaine on June 24, 1994; .43 grams on June 27, 1994; and .35

grams on June 30, 1994.    The probation officer determined that

Adams should be held accountable for a total of 1.24 grams of

crack cocaine, giving Adams a base offense level of 18.    The

probation officer calculated a guideline range of 30-37 months.

However, the probation officer determined that pursuant to

U.S.S.G. § 5G1.1(b), the guideline sentence was 120 months.

      The probation officer determined that the statutory minimum

for 50 grams of crack cocaine provided for in § 841(b)(1)(A)(iii)

applied to supersede the guideline range of 30-37 months, without

stating any reasons in the PSR, and without determining that
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                                  -4-

Adams was accountable based on relevant conduct for any amount of

crack beyond the 1.24 grams stated in the PSR.      Adams’ counsel

did not object to this determination, either in writing or at the

sentencing hearing.    The district court sentenced Adams to 120

months’ imprisonment.

     The quantity of drugs involved in a conspiracy offense is a

fact to be found by the sentencing court from a preponderance of

the evidence.    Ruiz, 43 F.3d at 989.   The district court may rely

upon information presented in the PSR.      Id.   In Ruiz, the

defendant, in a direct appeal, made the same argument that Adams

now makes.   The PSR “directly linked” the defendant to only .632

grams of heroin, but she was sentenced according to the statutory

minimum of § 841(b)(1)(A).    Id.   The defendant’s attorney made no

objection in the district court.    We held that it was not plain

error because the PSR contained other facts which provided the

district court with a sufficient basis for concluding that the

defendant’s offense involved the requisite amount of heroin.         Id.

     In the district court, the Government pointed to no other

information in the PSR which could provide a basis for holding

Adams accountable for more than the 1.24 grams used by the

probation officer.    The Government conceded error.    Our review of

the PSR, the rearraignment transcript, and the sentencing

transcript reveals no factual basis for holding Adams accountable

for more than 1.24 grams of cocaine base.     Adams’ counsel erred

in failing to object to the application of the statutory minimum

of 120 months.   This error was prejudicial because Adams’
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                                -5-

sentence would have been significantly less harsh.   Spriggs, 993

F.2d at 88.

     Adams has made a substantial showing of the denial of a

constitutional right and he is entitled to § 2255 relief.   28

U.S.C. § 2253(C)(2).   We therefore GRANT a COA, VACATE Adams’

sentence, and REMAND this case for resentencing consistent with

this opinion.

     GRANT COA, VACATE SENTENCE, REMAND FOR RESENTENCING.
