                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 20, 2007
                               No. 05-13535                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

         D. C. Docket Nos. 04-80339-CV-WJZ & 01-08074 CR-WJZ

MILTON SMITH,



                                                   Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (August 20, 2007)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     On March 25, 2002, petitioner pled guilty to Count I of a two-count
indictment, which charged him with conspiring in violation of 21 U.S.C. § 846 to

possess with intent to distribute a mixture and substance containing a detectable

amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). On April 11, 2003, the

district court sentenced him to prison for a term of 108 months and a five-year term

of supervised release.

       On April 12, 2004, petitioner moved the district court to vacate his sentence

pursuant to 28 U.S.C. § 2255 on the ground that his attorney rendered ineffective

assistance of counsel by failing to object to the imposition of the five-year term of

supervised release. The district court denied his motion and his application for a

certificate of appealability (“COA”). We likewise denied his application for a

COA, and petitioner then petitioned the Supreme Court for a writ of certiorari. In

response to his petition, the Solicitor General confessed error: counsel rendered

ineffective assistance in not calling to the district court’s attention the fact that the

five-year term of supervised release the court imposed exceeded the two-three-year

range prescribed by the Sentencing Guidelines, specifically U.S.S.G. §

5D1.2(a)(2).1 On January 8, 2007, the Court granted his petition, vacated our

judgment, and remanded the case with the instruction that we grant a COA so we


       1
         Count I of the indictment alleged a Class C felony, in that it described an offense
involving “a detectable amount of cocaine.” At sentencing, the court’s probation officer
misinformed the court that petitioner’s offense was a Class B felony that called for a term of
supervised release of three-five years.

                                                 2
could consider the Solicitor General’s confession of error. We granted the COA,

and in its reply brief, the Government has confessed the error the Solicitor General

pointed out. We therefore vacate the district court’s denial of petitioner’s § 2255

motion and remand the case for resentencing.

      SO ORDERED.




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