                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                     April 28, 2009
                                   TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 07-6141
 v.                                              (D.C. No. 06-CR-222-01-L)
                                                        (W.D. Okla.)
 DEJUAN MARTEZ COVINGTON,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, KELLY, and McCONNELL, Circuit Judges. **


      Defendant-Appellant Dejuan Martez Covington pled guilty to one count of

knowingly and intentionally distributing 5 or more grams of cocaine base (crack

cocaine) in violation of 21 U.S.C. § 841(a)(1). Qualifying as a career offender,

he was sentenced to 210 months’ imprisonment followed by 4 years’ supervised




      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
release. 1 A divided panel affirmed the judgment. United States v. Covington,

284 Fed. App’x 579 (10th Cir. 2008). Judge McConnell viewed the district

court’s remarks at sentencing as an incorrect statement that the Sentencing

Guidelines were mandatory. Id. at *2.

         Mr. Covington filed a petition for a writ of certiorari, and the Supreme

Court granted the writ and vacated our judgment for further consideration of the

case in light of Nelson v. United States, 129 S. Ct. 890 (2009). Covington v.

United States, --- S.Ct. ----, 2009 WL 735651 (Mar. 23, 2009) (mem.). Upon

consideration thereof, the case is REMANDED to the district court to vacate its

judgment and resentence Mr. Covington, treating the Sentencing Guidelines as

advisory and not affording any presumption of reasonableness to the Guidelines

range.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




         1
        Qualifying as a career offender, Mr. Covington’s total offense level was
32 and his criminal history category was VI, yielding a Guidelines range of 210 to
262 months. Absent the career offender enhancement, his total offense level
would have been 26, his criminal history category would have remained VI, and
his Guidelines range would have been 120 to 150 months.

                                          -2-
