                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT



                                       No. 00-20629


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                          versus

GREGORY BATISTE MOSLEY,

                                                        Defendant-Appellant.



              Appeal from the United States District Court
                   For the Southern District of Texas
                             (H-99-CR-609-1)


                                   July 31, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE,*
District Judge.

PER CURIAM:**

      Defendant      Gregory     Batiste      Mosley    challenges       his    ten-year

sentence for his conviction of using and carrying a firearm during

and in relation to a crime of violence (bank robbery).1                        He argues

that the use-of-a-firearm statute under which he was convicted, 18


      *
        District    Judge   of   the    Western   District   of   Louisiana,   sitting   by
designation.
      **
         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should not be published and is not precedent except under the limited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.
      1
          See 18 U.S.C. § 924(c)(1)(A).
U.S.C. section 924(c)(1)(A), creates three separate offenses, the

elements of which must be stated in the indictment and proved to a

jury.      Each offense would have one distinct element: using and

carrying a firearm, brandishing a firearm, or discharge of a

firearm.2

      The district court, however, treated these three factors as

sentencing factors rather that elements of distinct crimes.             Thus,

although Mosley pleaded guilty only to using and carrying a firearm

during and in relation to a bank robbery, the district judge

sentenced him after finding that a firearm was discharged during

the course of the bank robbery.             The finding that a firearm was

discharged raised Mosley’s sentence from five years—the minimum

statutory sentence for using or carrying a firearm—to ten years—the

minimum statutory sentence for discharge of a firearm.3                Before

pleading guilty, however, Mosley had been informed by the district

court that the statutory minimum sentence was five years.

      We must reject Mosley’s challenge to the district court’s

treatment of discharge of a firearm as a sentencing factor.               This

circuit has recently joined our sister circuits in holding that

brandishing a firearm and discharging a firearm are sentencing




      2
          See 18 U.S.C. § 924(c)(1)(A)(I)-(iii).

      3
       See 18 U.S.C. § 924(c)(1)(A). The Sentencing Guidelines require that the
defendant be given the minimum statutory sentence when convicted under section
924(c)(1)(A). See U.S.S.G. 2K2.4(a)(2) (2000).

                                        2
factors rather than elements.4          Thus, the district court did not

err in sentencing Mosley to a ten-year sentence on his firearm

count.

     We agree with Mosley, however, that the district court erred

in conducting the plea colloquy by failing to inform Mosley of the

correct statutory minimum sentence.5             The government does not

contest Mosley’s claim that the error requires vacatur of the

guilty plea.

     We VACATE Mosley’s plea of guilty to using and carrying a

firearm during and in relation to a crime of violence and REMAND

this case to the district court.




     4
          See United States v. Barton, 2001 WL 765829, *6-8 (5th Cir. July 9,
2001).
     5
         See United States v. Still, 102 F.3d 118, 122 (5th Cir. 1996).

                                       3
