#### UNITED STATES of America, Plaintiff-Appellee, v. Joseph Dean LIRA, Defendant-Appellant.

No. 11-30324.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 10, 2012.

Submitted June 27, 2013.

Filed Aug. 2, 2013.

Brian P. Fay (argued), Angel, Coil & Bartlett, Bozeman, MT, for Defendant-Appellant.

Michael W. Cotter, United States Attorney; Leif M. Johnson (argued), Assistant United States Attorney, Billings, MT, for Plaintiff-Appellee.

*1044Before: A. WALLACE TASHIMA, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Joseph Dean Lira appeals the 120-month sentence imposed following his jury-trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). We have jurisdiction under 28 U.S.C. § 1291. Due to an intervening change in the law, we vacate the entire sentence imposed by the district court, and remand for re-sentencing.

Lira was charged with five counts related to drug distribution and firearm possession. Count I charged possession with intent to distribute methamphetamine. Counts II and III charged distribution of methamphetamine. Count IV charged that Lira knowingly and unlawfully used and/or carried and possessed firearms in furtherance of the drug trafficking crimes set forth in Counts I and II. Count V charged Lira with illegal possession of a firearm affecting interstate or foreign commerce. The jury convicted Lira on Counts I-IV and acquitted him of the charge in Count V.

The district court sentenced Lira to 262 months imprisonment on each of Counts I-III, to be served concurrently. The mandatory minimum sentence for a conviction under Count IV is five years, but under 18 U.S.C. § 924(c)(1)(A)(iii) the mandatory minimum increases to ten years if a firearm was discharged. Here, the district court found by a preponderance of the evidence that Lira discharged a firearm “during and in relation to or in furtherance” of a drug trafficking offense. Based on this finding, Lira was sentenced to an additional consecutive term of 120 months, the mandatory minimum sentence. 18 U.S.C. § 924(c)(l)(A)(iii).

On appeal, Lira challenges the imposition of the ten-year sentence under 18 U.S.C. § 924(c)(l)(A)(iii). He argues that four witnesses testified that Lira used and/or carried or possessed a firearm in furtherance of different drug trafficking incidents, but only one witness provided admissible testimony regarding the discharge of a firearm. Lira contends that the district court could not properly impose the ten year mandatory minimum sentence for discharging a firearm because the court had no way of knowing which incident the jury relied upon to convict him of Count IV. We do not reach Lira’s argument because a newly-announced decision from the United States Supreme Court lenders it moot.

The district court relied on the then-current state of the law when it sentenced Lira. In *Harris v. United, States,*536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the Supreme Court held that whether a defendant discharged a firearm under § 924(c)(1)(A) is a sentencing element that may be found by a judge by a preponderance of the evidence. But the rule in *Harris*was reconsidered in *Alleyne v. United States,*— U.S.-, 133 S.Ct. 2151, 2162-63, 186 L.Ed.2d 314 (2013), and overruled. *Alleyne*held that “facts that increase mandatory minimum sentences must be submitted to the jury” and established “beyond a reasonable doubt.” *Id.*at 2163. As the government now concedes, Lira’s sentence on Count IV does not comport with *Alleyne*because the increased mandatory minimum sentence was based on a fact found by the district court by a preponderance of the evidence. *Id.*Accordingly, the sentence on Count IV must *1045be vacated. Because the sentencing package has now become “unbundled,” the district court must reexamine the entire sentence in light of the vacated sentence on Count TV. *See United States v. Avila-Anguiano,*609 F.3d 1046, 1049 (9th Cir.2010). We vacate Lira’s entire sentence and remand this case to the district court for re-sentencing.

VACATED and REMANDED.