UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                 No. 95-5451

QUINTON D. RAINEY, a/k/a Q,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
John A. MacKenzie, Senior District Judge.
(CR-94-69)

Argued: June 6, 1996

Decided: October 15, 1996

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Vacated and remanded with instructions by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Fernando Groene, Assistant United States Attorney, Nor-
folk, Virginia, for Appellant. Richard W. Hudgins, Newport News,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Norfolk, Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Quinton D. Rainey was convicted of conspiracy to distribute
cocaine base and possession of cocaine base with the intent to distrib-
ute, see 21 U.S.C.A. §§ 841(a)(1), 846 (West 1981 & Supp. 1996);
the district court sentenced him to 135 months imprisonment. The
Government now appeals the refusal of the district court to impose
the statutorily required mandatory minimum sentence of 20 years. See
21 U.S.C.A. § 841(b)(1)(A) (West Supp. 1996). We summarily
reverse and remand for resentencing before another district judge.

I.

Prior to trial, the Government filed an information pursuant to 21
U.S.C.A. § 851(a)(1) (West 1981), certifying that in March 1993 Rai-
ney was convicted of possession of cocaine with the intent to distrib-
ute, a felony under Virginia law. See Va. Code Ann. § 18.2-248
(Michie 1996). Rainey raised no challenge to the§ 851(a)(1) certifi-
cation, see 21 U.S.C.A. § 851(b) (West 1981), and did not object to
the proposed finding in the presentence report that he was accountable
for in excess of 50 grams of cocaine base. However, at sentencing the
district court refused to hear the Government's argument that imposi-
tion of a mandatory minimum sentence of 20 years imprisonment was
required by 21 U.S.C.A. § 841(b)(1)(A) and instead sentenced Rainey
to 135 months imprisonment. The Government appeals.

II.

Congress has provided that a defendant who is convicted of violat-
ing 21 U.S.C.A. § 841(a) must receive a sentence of at least 20 years
imprisonment if the drug violation involves 50 grams or more of
cocaine base and if the "person commits such a violation after a prior
conviction for a felony drug offense has become final." 21 U.S.C.A.

                    2
§ 841(b)(1)(A). There is no dispute that Rainey possessed the predi-
cate felony drug conviction. Nor is there any dispute that Rainey's
instant violation involved more that 50 grams of cocaine base. Indeed,
on appeal, as before the district court, Rainey offers no argument that
the 20-year mandatory minimum sentence should not have been
imposed. Accordingly, we vacate the sentence imposed in clear viola-
tion of a mandate of Congress and remand for resentencing before
another district judge.

VACATED AND REMANDED WITH INSTRUCTIONS

                    3
