                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      May 6, 2011
                                   TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 10-8028
                                               (D.C. No. 2:09-CR-00140-ABJ-7)
 DANIEL LEWIS POWELL, a/k/a                                (D. Wyo.)
 Midnight Rider,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before, GORSUCH, HOLLOWAY and MATHESON, Circuit Judges.


      Daniel Powell appeals his sentence for two drug crimes. He charges that

the district court erred in: failing to give him an opportunity to allocute before it

pronounced sentence; determining the drug quantity for which he should be held

responsible; and applying a gun enhancement to his sentence. The government

concedes that the district court plainly erred on the first two scores, contests only

the last question, and admits that resentencing will be required. Because the one


      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
contested gun enhancement issue may or may not remain relevant after

resentencing, we need not decide it at this time.

      Mr. Powell’s sentence is vacated and this matter is remanded for

resentencing.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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