               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-40908
                         Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

ERNESTO DE LA GARZA-OCHOA,

                                             Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-98-CR-243-1
                      --------------------

                            August 9, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     Ernesto De La Garza-Ochoa (De La Garza) has appealed the

district court’s determination that he is not eligible for a

downward departure under U.S.S.G. § 2L1.2(b)(1)(A), comment.(n.5)

because De La Garza’s seven-year probated sentence for a prior

Texas cocaine offense was for a term of imprisonment which

“exceeded one year.”   It is not possible to tell from the record

in this case whether De La Garza received deferred adjudication

probation for the Texas cocaine conviction or whether he was


     *
        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that this opinion should not be published and is not precedent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. 98-40908
                                  -2-

sentenced to a term of imprisonment which was suspended.   Because

this issue must be resolved in order to determine whether De La

Garza is eligible for a downward departure under

§ 2L1.2(b)(1)(A), comment.(n.5), his sentence is VACATED and the

case is REMANDED to the district court for further proceedings in

light of United States v. Banda-Zamora, ___ F.3d ___, ___ (5th

Cir. June 16, 1999, No. 98-40903), 1999 WL 393480.

     VACATED AND REMANDED.
