SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment is AFFIRMED in part and REMANDED in part.

Johnny Nunez Garcia appeals from a judgment of conviction dated January 11, 2013 sentencing him to a total term of 240 months' imprisonment to be followed by five years of supervised release and imposing a $200 mandatory special assessment.

In a Superseding Indictment filed on December 21, 2011, Garcia was charged with (1) conspiracy to distribute and possess with intent to distribute at least 280 grams of cocaine base (in the form of crack) in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (Count One) and (2) knowingly using and carrying firearms in furtherance of the conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count Two). Garcia was convicted on both counts. At the urging of the government, the jury was not asked to make any finding as to whether the firearm "used and carried" was, in fact, discharged. Instead, the court itself made the finding as to discharge and, pursuant to that finding, the district court imposed what it believed to be the mandatory minimum prison term of 120 months for each count, to be served consecutively.

Among the several challenges that Garcia brings on appeal, he argues that the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), requires that this Court remand for resentencing. The government concedes this argument, and we agree. Accordingly, we instruct the district court to vacate and resentence, with a mandatory minimum sentence on Count Two of five years' imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i), in keeping with the jury's factual findings that Garcia used and carried a firearm in furtherance of the conspiracy.

We decline to address Garcia's argument that he was deprived of effective assistance of counsel at sentencing. The opportunity for resentencing renders that argument moot.

We have considered Garcia's remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED in part and REMANDED in part.