                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         June 1, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 03-21085
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

ERIC KUNG-SHOU HO,

                                           Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 4:00-CR-183-1
                        --------------------




Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

      Eric Ho was convicted of violating the Clean Air Act.                  The

district court denied certain sentencing enhancements urged by the

government, including a U.S.S.G. § 2Q1.2 enhancement based on the

emission of asbestos into the environment and a § 3B1.2 enhancement

for Ho’s status as a leader or organizer of activity involving five


      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
                              No. 03-21085
                                   -2-

or more persons or that was otherwise extensive.               The district

court sentenced Ho to two months of community confinement and six

months of home confinement, and declined to rule on Ho’s motion for

downward departure because Ho’s ultimate sentence did not include

imprisonment. We affirmed the conviction but reversed and remanded

for resentencing, holding that the government had carried its

burden of proof on the § 2Q1.2 enhancement and that the district

court had erred in its interpretation of the term “otherwise

extensive.”   United States v. Ho, 311 F.3d 589, 610-11 (5th Cir.

2002).

     On remand, Ho renewed his motion for downward departure.            The

district court stated that, although it believed a departure was

warranted, it was without authority to grant one because it was

limited on remand to the issues decided by this court’s mandate in

the first appeal.

     The district court erred in concluding that it did not have

the authority to reconsider Ho’s motion for downward departure on

remand.   See United States v. Lee, 358 F.3d 315, 321 (5th Cir.

2004).    Accordingly,   we   vacate   Ho’s   sentence   and    remand   for

resentencing. See United States v. Flanagan, 87 F.3d 121, 125 (5th

Cir. 1996).   We express no opinion regarding the merits of Ho’s

motion for downward departure.

     We deny Ho’s motion to remand as moot.              Because we have

decided this matter based on the downward departure issue, we do
                          No. 03-21085
                               -3-

not reach Ho’s additional claim that his sentence is invalid in

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

     VACATED AND REMANDED; MOTION TO REMAND DENIED AS MOOT.
