                             REVISED May 22, 2008

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                     No. 07-50684                         FILED
                                   Summary Calendar                      April 25, 2008

                                                                   Charles R. Fulbruge III
                                                                           Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

CHARLES LOUIS JONES, JR, also known as Charles Louis Jones

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:04-CR-66-1


Before GARWOOD, WIENER and GARZA, Circuit Judges.
PER CURIAM:*
       Appellant Charles Louis Jones, Jr. was convicted of conspiracy, from on
or about March 1, 2004 to on or about March 5, 2004, to distribute five grams or
more of crack cocaine, and of possessing with intent to distribute five grams or
more of crack cocaine on or about March 5, 2004. He was acquitted of possessing
a firearm during and in relation to those offenses (18 U.S.C. § 924(c)(1)). He was


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50684

sentenced to concurrent terms of 82 months’ imprisonment to be followed by
concurrent four terms of supervised release on each count of conviction. No fine
or restitution was imposed.
       Jones now appeals his conspiracy conviction, contending that the evidence
is not sufficient to show that he conspired (he makes no challenge to his
possession with intent to distribute conviction). Jones made a FED. R. CRIM. P.
Rule 29 motion when the Government rested, but (as he admits) he thereafter
presented evidence (his own testimony and that of another witness) and never
renewed his Rule 29 motion. Accordingly, he must show that his conviction
resulted in a manifest miscarriage of justice. United States v. Inocencio, 40 F.3d
716, 724 (5th Cir. 1994).
       Jones admitted that he had provided Lopez with crack cocaine in the past
and intended to provide her with more crack cocaine on the day that he was
arrested. Lopez’s testimony, which the jury apparently found to be credible,
reflected that Jones fronted her drugs which she sold to third parties. Lopez
testified that her roommate was also involved in the sales. A jury’s credibility
determinations must be accepted unless a witness’s testimony is incredible or
patently unbelievable. The record is not devoid of evidence that Jones was
involved in a conspiracy to distribute drugs. His conviction on the conspiracy
count is affirmed. United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992)
(en banc).
       Jones also argues that the district court violated his Sixth Amendment
sentencing rights in light of the holding in United States v. Booker, 543 U.S. 296
(2005). He further argues that the district court erred in enhancing his offense
level based on his having a leadership role in the criminal activity and in
denying him a reduction of his offense level based on the acceptance of
responsibility.1

       1
          Jones was sentenced in the latter part of 2004, and the case is now before us on an
out-of-time appeal granted in a § 2255 proceeding on the basis of ineffective assistance of

                                             2
                                       No. 07-50684

       The Government concedes that Jones’s Blakely v. Washington, 124 s.Ct.
2531 (2004), objections below preserved his Booker rights (and rights under
United States v. Fanfan) on appeal and that he properly preserved his role in the
offense and acceptance responsibility complaints.                 The Government also
concedes that it cannot demonstrate that the district court would have imposed
the same sentence under an advisory guidelines system and, thus, cannot show
that the Sixth Amendment error was harmless. The Government requests that
the case be remanded for resentencing.
       Because the Government concedes that it can not show harmless error,
Jones’s sentence is vacated and the case is remanded to the district court for
resentencing. United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005). The
court need not address Jones’s other sentencing arguments because it is within
the discretion of the district court to determine whether to impose the same
sentence with the identical enhancements. See United States v. Akpan, 407 F.3d
360, 377 n. 62 (5th Cir. 2005).
    CONVICTION ON EACH COUNT AFFIRMED; SENTENCE ON EACH
COUNT VACATED; REMANDED FOR RESENTENCING ON EACH COUNT.




counsel in respect to failure to appeal the 2004 judgment.
       The district court in sentencing Jones calculated his base offense level at 28 – which
included two levels assessed for leadership role and no deduction for acceptance of
responsibility (to each of which rulings Jones objected) – and his criminal history level at I,
producing a guideline range of 78-97 months. Had either one of Jones’s said objections been
sustained his guideline range would have been 63-78 months. Jones also objected below to his
sentencing under Blakely v. Washington, 124 S.Ct. 2531 (2004).
       Jones concedes that the applicable guideline range in respect to the possession with
intent to distribute count would not be affected were his conspiracy conviction set aside.



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