                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 10, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-31134
                          Summary Calendar


UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

versus

MICHAEL SCOTT CLEMENTS,

                               Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                  USDC No. 5:03-CR-50028-DEW-1
                       --------------------

Before JONES, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     A jury convicted Michael Scott Clements of conspiracy to

commit mail fraud, mail fraud, interstate transportation of stolen

motor vehicles, and money laundering, in violation of 18 U.S.C.

§§ 2, 371, 1341, 1957, 2312. The district court sentenced Clements

to 84 months in prison and three years of supervised release.

Clements challenges his sentence on two grounds.

     First, Clements argues that the district court erroneously

used U.S.S.G. § 2S1.1(a)(2), rather than § 2S1.1(a)(1), as a

starting point for determining his guideline sentencing range. The

     *
       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this opinion should not be published and is not precedent except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.
Government concedes this error.                After a de novo review, we

conclude that, because the laundered funds were derived from

offenses committed directly by Clements, the district court should

have used § 2S1.1(a)(1). See United States v. Villanueva, 408 F.3d

193,   202,   203   n.9   (5th    Cir.       2005).   Absent   the   erroneous

application of § 2S1.1(a), the applicable sentencing range would

have been lower than the range the district court considered, and

the maximum guideline sentence would have been lower than the 84-

month sentence that the district court imposed.            In such a case, a

remand for resentencing is appropriate.               See United States v.

Southerland, 405 F.3d 263, 270 (5th Cir. 2005).

       Second, Clements argues that his sentence is invalid in light

of the Supreme Court’s recent opinion in United States v. Booker,

125 S. Ct. 738 (2005).     In light of the foregoing, however, we need

not reach that argument.         See Southerland, 405 F.3d at 270.

       For the reasons stated above, we VACATE Clements’s sentence

and REMAND for resentencing in accordance with this opinion and

Booker.




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