                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                         UNITED STATES COURT OF APPEALS
                                                                                         March 14, 2005
                                  For the Fifth Circuit
                             ___________________________                            Charles R. Fulbruge III
                                                                                            Clerk
                                         03-20660
                               ___________________________

                              UNITED STATES OF AMERICA,
                                                                               Plaintiff - Appellee,

                                             VERSUS

                                      JUAN A. TREVINO,
                                                                            Defendant - Appellant


                         Appeal from the United States District Court
                             for the Southern District of Texas
                                     No. H-02-CR-36-4


Before JOLLY, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:1

       Juan A. Trevino challenges his sentence imposed following his guilty plea to

possession with intent to distribute marijuana. Specifically, he challenges the district

court’s findings as to the drug quantity that was used to enhance his sentence. He argues

that the key witness the government used to establish drug quantity was unreliable. The

district court judge did not hear testimony from the informant after the government

opposed the drug quantity and argued that the informant was not credible.

       In an unpublished opinion, this court has dealt with this issue in the appeal of three



       1
          Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
of Trevino’s co-defendants. See United States v. Jesus Lorenzo Ayala, Manuel Lorenzo

Garcia and Armando Perez, No. 03-20562 (5th Cir. August 13, 2004). In that case, three

of Trevino’s co-defendants objected to the district court’s finding of drug quantity on the

identical ground raised by Trevino. The panel made it clear that the district court was not

bound by the United States’ concession regarding drug quantity. However, it concluded

that the district court committed clear error by basing its findings on drug quantity on

statements of an informant identified by the government as unreliable without hearing the

informant’s testimony. As the government concedes, there is no principled basis to reach

a different result in this identical case.2

       We therefore vacate Trevino’s sentence and remand his case for resentencing and

to give the district court an opportunity to determine the credibility of the government

informant after hearing his testimony. The district court may sentence Trevino either on

the quantity of drugs seized or hear the informant’s testimony and sentence Trevino based

on the court’s evaluation of his credibility with respect to drug quantities in addition to

the drugs seized.

       VACATED and REMANDED.




       2
         Although Trevino signed a plea agreement containing a waiver of this right to appeal, we
need not enforce a waiver of appeal when the government does not ask us to do so. United States
v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001). Trevino also argues that his plea agreement should
be vacated on the basis of Rule 11 violations by the district court and ineffective assistance of
counsel. Given our disposition of this case, we need not address those issues.

                                               2
