                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                              ________________________

                                     No. 95-6960
                              ________________________

                           D. C. Docket No. CR-95-AR-91-S

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

       versus

ROY MACK WEST, a.k.a. Teeny Man, etc.,

                                                                 Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                           _________________________
                                 (January 26, 2000)

  ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GODBOLD and RONEY, Senior Circuit Judges.*

PER CURIAM:

__________________________________
C
      This decision is rendered by a quorum due to the retirement of then-Chief Judge Hatchett
      on May 14, 1999. See, 28 U.S.C. § 46(d).
      This case comes before us by order of the United States Supreme Court, which

has vacated the judgment of this Court as to appellant Roy Mack West, and remanded

the case for our reconsideration in light of Richardson v. United States, 119 S.Ct.

1707(1999). See United States v. West, 142 F.3d 1408 (11th Cir. 1998), vacated and

remanded, 119 S.Ct. 2042 (1999). In Richardson, the Supreme Court held that “a jury

in a federal criminal case brought under [21 U.S.C.] § 848 must unanimously agree

not only that the defendant committed some ‘continuing series of violations’ but also

that the defendant committed each of the individual ‘violations’ necessary to make

up that ‘continuing series.’” 119 S.Ct. at 1709.

      West was convicted of both conducting a continuing criminal enterprise

(“CCE”)(Count 1) and being a member of the underlying drug conspiracy (Count 2).

At sentencing, the court vacated Count 2 as a lesser included offense of the CCE

conviction. See United States v. Nixon, 918 F.2d 895, 908 (11th Cir. 1990) (when

defendant convicted on both a CCE count and a conspiracy county, the Court will

merge the two offenses by vacating the conviction of the lesser included conspiracy

count). The government concedes that the jury instruction given was not in accord

with the requirements of Richardson and that West’s conviction on the CCE count

cannot stand,       see also United States v. Riley, No. 96-4653 (11th




                                          2
Cir.1999)(unpublished), and requests that this Court remand to the district court with

instructions to reinstate the vacated drug conspiracy count and resentence West.

      Accordingly, we vacate West’s conviction for engaging in a continuing criminal

enterprise. Since the conspiracy conviction under Count 2 was vacated only because

it was a lesser included offense of the CCE conviction, and the CCE conviction no

longer stands, we remand this case to the district court with instructions to reinstate

West’s conspiracy conviction under Count 2 and resentence him.

      VACATED AND REMANDED.




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