                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4406


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE LUIS CORTES GONZALEZ, a/k/a Luis,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:07-cr-00063-GEC-JGW-4)


Submitted:   February 24, 2011               Decided:   March 14, 2011


Before WILKINSON and    GREGORY,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.  Donald Ray Wolthuis,
Assistant   United  States  Attorney,  Roanoke,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Jose Luis Cortes Gonzalez pled guilty to conspiracy to

manufacture,        to    distribute,       and       to    possess      with   intent     to

distribute cocaine HCL, cocaine base, and methamphetamine (Count

1),   in   violation       of   21   U.S.C.       §    846    (2006),     and   using      and

carrying a firearm during or in relation to a drug trafficking

crime (Count 69), in violation of 18 U.S.C. § 924(c) (2006).

Gonzalez was sentenced to consecutive mandatory minimum terms of

imprisonment of 120 months on Count 1 and 60 months on Count 69,

for a total sentence of 180 months.

              On    appeal,     Gonzalez      argues         that   he    was   improperly

convicted on Count 69 and that if that conviction is vacated,

his sentence on Count 1 is flawed because without the conviction

on    Count   69,    he    would     have   met       the    qualifications          for   the

“safety valve” provisions of 18 U.S.C. § 3553(e) (2006) and U.S.

Sentencing Guidelines Manual § 5C1.2 (2007), and thus may have

received      a    sentence     below   the       otherwise     applicable       statutory

minimum term of 120 months.

              The    United      States     has       filed     a   motion      to    vacate

Gonzalez’s conviction and sentence on Count 69 and to remand to

the district court for further proceedings.                         Gonzalez concurs in

this disposition of Count 69.

              Upon consideration, the court grants the Government’s

motion to vacate Gonzalez’s conviction and sentence on Count 69,

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and to remand to the district court for further proceedings as

may     be    appropriate.          In   addition,      we    affirm     Gonzalez’s

conviction on Count 1.            To preserve the rights of both Gonzalez

and   the      Government    as    to    Gonzalez’s     sentence    on    Count   1,

however, we further vacate Gonzalez’s sentence on Count 1, and

remand with instructions that Gonzalez is to be resentenced as

to Count 1 after the Government has had a reasonable opportunity

to determine whether to pursue further charges against him.

               We dispense with oral argument because the facts and

legal    contentions       are    adequately     presented    in   the    materials

before       the   court   and    argument     would   not   aid   the   decisional

process.

                                                               AFFIRMED IN PART,
                                                                VACATED IN PART,
                                                                    AND REMANDED




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