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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Before LUCERO, ANDERSON, Circuit Judges, and MILLS^(*), District Judge.

In its answer brief filed in opposition to Pacheco's appeal, the government concedes the district court erred in sentencing Pacheco under the Act because one of his prior convictions did not meet the statutory definition of a serious drug offense. Under the Act, a drug conviction must have a maximum term of imprisonment of ten or more years to qualify as a "serious drug offense." 18 U.S.C. § 924(e)(2)(A)(ii). Pacheco's 1985 conviction in California under Cal. Health & Safety Code § 11379.5 for selling or transporting PCP, including an enhancement under Cal. Penal Code § 667.5(b), had a maximum term of less than ten years. The government also concedes that sentencing Pacheco under § 924(e) was plain error.

Given the nature of Pacheco's prior conviction and the government's concession, we GRANT Pacheco's motion, VACATE his sentence, and REMAND for resentencing without application of the Act's mandatory minimum. We also note Pacheco's appeal challenges the district court's ruling that his prior conviction in California for attempted robbery was a violent felony under 18 U.S.C. § 924(e). We VACATE the district court's determination in that regard as well, leaving resolution of the issue for another day.

The oral argument previously scheduled for Thursday, November 17, 2000 is vacated and counsel are excused from attendance. A certified copy of this order shall stand as and for the mandate of this court.

Entered for the Court

PATRICK FISHER, Clerk of Court

by: Shannon K. Sullivan

Deputy Clerk

^*.Honorable Richard Mills, U.S. District Court Judge, Central District of Illinois, sitting by designation.

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