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that this opinion should not be published and is not precedent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

FILED

April 18, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-11188

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

versus

ROSE ELLA SUMMERS, 

also known as Rosie Campos,

also known as Rosie Summers,

Defendant-Appellant-Cross-Appellee.

--------------------

AppealS from the United States District Court

for the Northern District of Texas

USDC No. 3:96-CR-326-4-P

--------------------

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Rose Ella Summers was convicted of (1) conspiracy to possess

with intent to distribute methamphetamine and (2) conspiracy to

commit money laundering. The district court determined that she

had an offense level of 40 and a criminal history score in

category I. Her Sentencing Guidelines range was thus 292-365

months’ imprisonment, and the district court initially sentenced

her to 292 months’ imprisonment for count one and a concurrent
No. 01-11188

-2-

** We note that there is a pending motion by the Government

for reconsideration of the sentence, that the motion was filed

prior to the notices of appeal, and that the district court

should rule on this motion before this court addresses the

appeal. See FED. R. APP. P. 4(b)(3)(B); United States v. Ibarra,

502 U.S. 1, 7 (1991)); United States v. Greenwood, 974 F.2d 1449,

1465-67 (5th Cir. 1992). However, in light of our recent

decision in United States v. Garcia, __ F.3d __, 2003 WL 367746

(5th Cir. Feb. 20, 2003, No. 01-51150), it is clear that a ruling

on the motion for reconsideration would necessitate another

resentencing. 

term of 240 months’ imprisonment for count two. This court

vacated the sentence and remanded upon determining that the

sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). 

At resentencing, Summers again had an offense level of 40

and a criminal history score in category I, and her Sentencing

Guidelines range was 292-365 months’ imprisonment. Overruling

the Government’s request to impose consecutive sentences, the

district court sentenced Summers to two concurrent terms of 240

months’ imprisonment for her count one and two convictions. Both

Summers and the Government appeal the sentence.**

Since the filing of the instant appeals, this court has

determined that the imposition of consecutive sentences under

U.S.S.G. § 5G1.2(d) is mandatory to achieve the total minimum

punishment under the Guidelines. See United States v. Garcia, __

F.3d __, 2003 WL 367746 *4 (5th Cir. Feb. 20, 2003, No. 01-

51150). The district court’s imposition of concurrent sentences

was error, the sentence is vacated, and the case is remanded for

resentencing in accordance with Garcia.
No. 01-11188

-3-

Summers’s argument that the district court abused its

discretion in denying her motion for a downward departure was not

raised in her previous appeal, was beyond the scope of this

court’s prior mandate, and should not have been addressed by the

district court. See United States v. Marmolejo, 139 F.3d 528,

531 (5th Cir. 1998). 

SENTENCE VACATED. CASE REMANDED FOR RESENTENCING IN

ACCORDANCE WITH THIS OPINION.