                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT



                                         No. 01-50204



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                             versus

       JAMAAL ISAAC HERRING,

                                                           Defendant-Appellant.


                   Appeal from the United States District Court for
                            the Western District of Texas
                        (USDC No. A-00-CR-105-ALL-SS)
           _______________________________________________________
                                September 12, 2001

Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

       There has been understandable confusion in the past about whether “controlled

substance offense” under Section 2K2.1(a)(2) of the guidelines included a conviction for

mere possession of a controlled substance. The law is clear that a crime of violence or




       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
controlled substance offense “does not include simple possession.” United States v.

Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992). Sec. 4B1.2(2).

      The PSR erred in the recommendation to this effect, and no objection was made by

the defendant. The sentence was therefore the consequence of a mistake.

      The sentence is vacated and the cause remanded for resentencing.




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