* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-10077

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNIE LEE DAWSON,

also known as Johnny Lee Dawson,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:96-CR-25-11-Y

 

September 24, 1997

Before KING, HIGGINBOTHAM, AND DAVIS, Circuit Judges.

PER CURIAM:*

 Johnnie Lee Dawson appeals the sentence imposed by the

district court upon his plea of guilty to distributing crack

cocaine. He argues that the court erred in sentencing him under

the Sentencing Guidelines as a career offender and in failing to

assess him as a minor or minimal participant.

 We have reviewed the record and the briefs of the parties,

and we reject both of Dawson’s contentions. See United States v.
No. 97-10077

-2-

Guadardo, 40 F.3d 102, 103-04 (5th Cir. 1994) (noting that §

4B1.2, which was amended in 1989, specifically lists the burglary

of a dwelling as a crime of violence); United States v. Fitzhugh,

954 F.2d 253, 254-55 (5th Cir. 1992) (noting that a district

court is not permitted to consider the facts underlying an

offense of conviction to determine whether the offense is a crime

of violence for purposes of the career-offender provision);

United States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989) (noting

that the classification of burglary of a habitation as a crime of

violence obviated the need for a district court to consider the

factual context of such conviction); United States v. Calverly,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert denied, 513

U.S. 1196 (1995)(citing United States v. Olano, 507 U.S. 725,

731-37 (1993)) and United States v. Flucas, 99 F.3d 177, 181 (5th

Cir. 1996), cert. denied, 117 S. Ct. 1097 (1997) (relying on §

3B1.2, comment (n. 4), which provides that a defendant who is

convicted of less than his actual criminal conduct is not

entitled to a minor participation reduction). 

The government concedes, sua sponte, a calculation error in

Dawson’s total adjusted offense level. In this case, the maximum

term was twenty years of imprisonment, and therefore, the

appropriate base offense level should have been 32, rather than

34 as calculated by the probation officer and adopted by the

district court. See U.S.S.G. § 4B1.1(C). Taking into account

the three-level reduction in offense level for acceptance of
No. 97-10077

-3-

responsibility granted by the district court, Dawson’s adjusted

offense level should have been 29, thus resulting in a sentencing

range of 151-188 months, rather than 188-235 months. The

government has not defended the sentence by relying upon the

absence of a contemporaneous objection or the failure of the

defendant to raise this issue on appeal. Rather, it has conceded

the necessity for a limited remand based on the unique facts of

this case. We accept this confession of error by the government. 

Accordingly, we VACATE and REMAND for resentencing. See United

States v. Fagan, 821 F.2d 1002, 1015 n.9 (5th Cir. 1987) (noting

that contentions not raised on appeal are ordinarily deemed

waived but exception made to prevent a manifest miscarriage of

justice).

 VACATED and REMANDED.