                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 13 2000
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 00-2131
 v.                                               (D.C. No. CR-99-767-JP)
                                                     (D. New Mexico)
 RIGOBERTO PACHECO,

          Defendant - Appellant.



                                      ORDER


Before LUCERO, ANDERSON, Circuit Judges, and MILLS *, District Judge.



      The Court, in order to correct a clerical error in the issuance of this order

dated November 13, 2000, hereby reissues the order to reflect the correct day in the

last paragraph regarding the previously scheduled oral argument, from Thursday to

Friday, the rest of the order remains the same.

      The order is reissued nunc pro tunc and is to read as follows:

      Defendant-appellant Rigoberto Pacheco was sentenced to a mandatory

minimum fifteen-year sentence pursuant to 18 U.S.C. § 924(e), the Armed Career



      *
        Honorable Richard Mills, U.S. District Court Judge, Central District of
Illinois, sitting by designation.
Criminal Act (“the Act”), which applies to defendants who have three or more

convictions for violent felonies and/or serious drug offenses. Pacheco has filed an

“Unopposed Motion for Remand” arguing he should not have been sentenced under

the Act and requesting resentencing by the district court.

      In its answer brief filed in opposition to Pacheco’s appeal, the government

concedes the district court erred in sentencing Pacheco under the Act because one

of his prior convictions did not meet the statutory definition of a serious drug

offense.   Under the Act, a drug conviction must have a maximum term of

imprisonment of ten or more years to qualify as a “serious drug offense.”   18 U.S.C.

§ 924(e)(2)(A)(ii). Pacheco’s 1985 conviction in California under Cal. Health &

Safety Code § 11379.5 for selling or transporting PCP, including an enhancement

under Cal. Penal Code § 667.5(b), had a maximum term of less than ten years. The

government also concedes that sentencing Pacheco under § 924(e) was plain error.

      Given the nature of Pacheco’s prior conviction and the government’s

concession, we GRANT Pacheco’s motion, VACATE his sentence, and REMAND

for resentencing without application of the Act’s mandatory minimum. We also note

Pacheco’s appeal challenges the district court’s ruling that his prior conviction in

California for attempted robbery was a violent felony under 18 U.S.C. § 924(e). We

VACATE the district court’s determination in that regard as well, leaving resolution

of the issue for another day.


                                           -2-
      The oral argument previously scheduled for Friday, November 17, 2000 is

vacated and counsel are excused from attendance. A certified copy of this order

shall stand as and for the mandate of this court.


                                       Entered for the Court
                                       PATRICK FISHER, Clerk of Court

                                       by:
                                               Shannon K. Sullivan
                                               Deputy Clerk




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