                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 17 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-6104
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. 98-CR-93-T)
MICHAEL DEVAIN SMITH,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Michael D. Smith pleaded guilty to a single count of possessing, on

November 2, 1997, cocaine base with intent to distribute in violation of 21 U.S.C.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 841(a)(1). At the time of the guilty plea, all parties contemplated that Smith’s

eligibility for one of the minimum mandatory sentences set out in 21 U.S.C. §

841(b) would be answered by reference to all relevant conduct, as that term is

defined in the United States Sentencing Guidelines (“U.S.S.G.”), not just the

conduct relating to the offense of conviction. See United States v. Reyes, 40 F.3d

1148, 1150-51 (10th Cir. 1994), overruled by, United States v. Santos, 195 F.3d

549, 552-53 (10th Cir. 1999).

      In line with this assumption, the United States Probation Office prepared a

Presentence Investigation Report (“PSR”) concluding that Smith had possessed

with intent to distribute 14.175 grams of cocaine base on November 2nd. The

PSR further concluded that the total amount of drugs attributable to Smith under

the U.S.S.G. relevant conduct provisions was 77.915 grams of cocaine base. The

77.915 grams of cocaine base attributable to Smith resulted in an offense level of

32. See U.S.S.G. § 2D1.1(c)(4). The PSR adjusted Smith’s offense level

downward three levels based on Smith’s acceptance of responsibility. See

U.S.S.G. § 3E1.1(a), (b). Because Smith had a criminal history category of II, his

offense level of 29 resulted in a sentencing range of 97 to 121 months. See

U.S.S.G. ch. 5, pt. A, sentencing table. Nevertheless, utilizing the relevant

conduct quantity of 77.915 grams, rather than the 14.175 grams actually

underlying the offense of conviction, the PSR concluded that Smith was subject to


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a minimum mandatory term of 120 months under 21 U.S.C. § 841(b)(1)(A).

Accordingly, the PSR concluded that Smith’s real sentencing range was 120 to

121 months imprisonment.

      At the sentencing hearing, the district court adopted the PSR and sentenced

Smith to a term of imprisonment of 120 months. Smith never objected to the use

of relevant conduct drug quantities to establish his minimum mandatory sentence

under § 841(b).

      On October 4, 1999, Smith’s counsel filed a brief in this court pursuant to

Anders v. California, 368 U.S. 738 (1967), together with a motion to withdraw as

attorney of record. In the brief and motion, counsel noted that Smith had insisted

on an appeal, but that counsel’s review of the record demonstrated that no non-

frivolous issues existed to raise on appeal. Noting that this court’s decision in

Reyes had recently been overruled, see Santos, 195 F.3d at 552-53, 1 we ordered

the parties to file supplemental briefs addressing the propriety of the district

court’s sentencing calculations.

      In its supplemental brief, the United States confesses error and asks this

court to remand the case to the district court for resentencing within the



      1
       In Santos, this court adopted the uniform approach of other circuits and
held that mandatory sentencing directives in § 841(b) are governed solely by the
drug quantities involved in the offense of conviction for which sentence is
imposed, without considering U.S.S.G. relevant conduct.

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sentencing guideline range set out in the PSR and without regard to the § 841(b)

minimum mandatory. Although not bound by the government’s confession of

error, 2 this court agrees that in light of Santos, the district court erred in

sentencing Smith pursuant to § 841(b). 3 We further agree that a remand for the

specific purpose of allowing the district court to exercise its discretion to

sentence Smith within the 97 to 121 month range set forth in the PSR is the

appropriate remedy. 4 Accordingly, exercising jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742, this court REMANDS to the district court to vacate

Smith’s sentence and resentence him consistent with this opinion.

                                         ENTERED FOR THE COURT:



                                         Michael R. Murphy
                                         Circuit Judge




      2
          See United States v. Osuna, 189 F.2d 1289, 1295 n.7 (10th Cir. 1999).
      3
        On appeal, the government simply confesses error. It does not argue that
the district court’s sentencing error was not “plain” and therefore not remediable
under Federal Rule of Criminal Procedure 52. Because the government has
neither raised nor briefed the issue, this court offers no opinion on that question.
      4
       Such a remand is appropriate unless the district court makes clear during
the sentencing proceeding that the sentence would be the same with or without the
minimum mandatory. See United States v. Urbanek, 930 F.2d 1512, 1516 (10th
Cir. 1991).

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