                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 17, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30273
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JONATHAN WADE DAVIS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 2:03-CR-20045-3
                       --------------------

Before    DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jonathan Wade Davis appeals his sentence following a guilty

plea to possession with intent to distribute approximately 28 grams

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Relying

primarily on Blakely v. Washington, 124 S. Ct. 2531 (2004), Davis

argues that the district court erroneously sentenced him based on

its determination that he was responsible for 2.4948 kilograms of

methamphetamine when he stipulated only to 28 grams as charged in

the bill of information. Davis's Blakely argument is foreclosed by


     *
       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this opinion should not be published and is not precedent except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. 04-30273
                                     -2-

circuit precedent.      See United States v. Pineiro, 377 F.3d 464, 473

(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)(No.

03-30437).

     Davis    also    argues   that   the   district   court   erred   by   not

sentencing him below the statutory minimum.            The Government, which

had filed a motion for downward departure under U.S.S.G. § 5K1.1

prior to sentencing, concedes that the district court erroneously

concluded that it could not sentence Davis below the statutory

minimum.     Our review of the record shows that the district court

did err as a matter of law in its belief that the sentence could

not be lower than the statutory minimum.               See United States v.

Lopez, 264 F.3d 527, 531-32 (5th Cir. 2001).              Because it is not

apparent whether the district court would have imposed the same

sentence     absent   the   error,    the   case   must   be   remanded     for

resentencing.     See United States v. Tello, 9 F.3d 1119, 1131 (5th

Cir. 1993).

     AFFIRMED in part, VACATED in part, and REMANDED.
