Summary Calendar UNITED STATES OF AMERICA v. Leo Loston

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 7, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30232
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LEO LOSTON
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:05-CR-50004
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Leo Loston appeals from the 300-month sentence imposed
following his guilty plea to possession with the intent to
distribute crack cocaine. He argues for the first time on appeal
that his November 1986 drug trafficking conviction was not a
qualifying conviction for purposes of the U.S.S.G. § 4B1.1 career
offender provision.
Our review is for plain error only. See United States v.
Villegas, 404 F.3d 355, 358 (2005). The career offender
enhancement is to be made only if the prior offense occurred

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No. 06-30232
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within 15 years of the commission of the instant offense or if
any part of the prior sentence was served during that same time
period. U.S.S.G. § 4A1.2(e). Because there was insufficient
information contained in the record from which the district court
could have concluded that Loston’s November 1986 qualified him
for the career offender enhancement, the district court plainly
erred in applying the enhancement. This error affected Loston’s
substantial rights and affected the fairness and integrity of the
judicial proceedings. See United States v. Garza-Lopez, 410 F.3d
268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). The
government agrees with Loston that his sentence should be vacated
and remanded for resentencing.
Loston’s sentence is VACATED, and the case is REMANDED for
resentencing.

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