               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-41470
                          Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

BENITO RAMIREZ-YBARRA, also known as Benito Ramirez,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. B-01-CR-396-1
                        --------------------
                            July 17, 2002

Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Benito Ramirez-Ybarra pleaded guilty to being found in the

United States without permission after having been previously

deported.   He was sentenced on December 3, 2001, and the 2001

Sentencing Guidelines, which became effective November 1, 2001,

apply to his case.

     Ramirez appeals the district court’s increase of his offense

level by 16 under U.S.S.G. § 2L1.2(b)(1)(A).   The district court


     *
        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that this opinion should not be published and is not precedent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. 01-41470
                                  -2-

determined that Ramirez’ prior conviction for being a felon in

possession of a firearm was a firearms offense under U.S.S.G.

§ 2L1.2(b)(1)(A)(iii).   However, the district court did not

determine whether the gun involved in Ramirez’ prior offense fell

within the definition of firearm under 26 U.S.C. § 5845(a), as

referenced in Application Note 1(B)(v)(II) of U.S.S.G. § 2L1.2.

The Government concedes that the record is devoid of evidence to

allow for such a determination.    The district court’s sentence is

VACATED and this case is REMANDED so that the district court can

make such a determination.
