                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 28, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41506
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMES L. EASON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:03-CR-232-3
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     James L. Eason appeals the sentence imposed following his

guilty-plea conviction for conspiracy to distribute or possession

with intent to distribute 500 or more grams of methamphetamine in

violation of 21 U.S.C. § 846.   Eason argues that his sentence

should be vacated and the case remanded for resentencing because

the district court increased his offense level based on its

findings of reckless endangerment, his leadership role, and the

type of methamphetamine involved in the conspiracy offense and

because the district court erred in basing his sentence on the

     *
       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this opinion should not be published and is not precedent except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. 04-41506
                                 -2-

mandatory Guidelines that were held unconstitutional in United

States v. Booker, 125 S. Ct. 738 (2005).

     The Government asserts that “although the record supports a

finding that it is not likely that the court would have imposed a

lesser sentence, it does not appear to support such a finding

beyond a reasonable doubt.”   The Government concedes that the

sentence should be vacated and the case should be remanded for

resentencing in view of Booker.   Accordingly, we VACATE Eason’s

sentence and REMAND for resentencing in view of Booker.

     Eason also argues that: (1) the district court erred in

increasing Eason’s offense level for reckless endangerment;

(2) the district court erred in denying Eason a three-level

reduction in his offense level for acceptance of responsibility;

(3) the district court erred in increasing Eason’s offense level

for his leadership role in the offense; (4) the district court

erred in denying Eason a two-level decrease in his offense level

pursuant to the U.S.S.G. § 5C1.2 safety valve provision; and (5)

the district court erred in determining that the offense involved

“ice” methamphetamine.   As in United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005), because we vacate and remand

Eason’s entire sentence, we need not and do not reach his other

arguments of sentencing errors; rather, we leave to the

discretion of the district court whether, in its discretion, it

will impose the identical sentence with the identical departures

or enhancements, or both.
                     No. 04-41506
                          -3-

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
