Not for Publication in West's Federal Reporter

          United States Court of Appeals
                         For the First Circuit
 
 



No. 14-1495

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                            MARKEVIN FAUCETTE,

                                  Appellant.
 

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]
 

                                    Before

                        Lynch, Stahl and Barron,
                             Circuit Judges.
                                          

     Elaine Mittleman on brief for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
                                          

                                          

                                June 17, 2015
                                          

                                          
            PER CURIAM.   The defendant organized an operation which

transported a substantial amount of drugs to Lewiston, Maine.     A

two-count indictment charged the defendant with conspiracy to

possess with intent to distribute 28 grams or more of cocaine base

(Count I) and possession with intent to distribute 28 grams or

more of cocaine base (Count II).     The defendant pled guilty only

to Count I. The defendant's presentence investigation report (PSR)

incorrectly stated that he had pled guilty to both Count I and

Count II.    The defendant failed to object to that error in the

PSR.   His supplemental sentencing memorandum — submitted by new

counsel and not the lawyer who represented him at the Rule 11

hearing — also inaccurately represented that he had pled guilty to

both counts.

            The PSR determined that the defendant's prior felony

convictions triggered career offender status, giving him Offense

Level 37 and Criminal History Category VI.    See U.S.S.G. § 4B1.1.

After decreasing his total offense level by three for acceptance

of responsibility, see U.S.S.G. § 3E1.1, the PSR calculated the

defendant's guideline range at 262 to 327 months of imprisonment.

At sentencing, both the government and defense counsel affirmed

that they had no objections to the PSR's guideline calculation.

The district court sentenced the defendant to 200 months in prison

— below the career offender range — and eight years of supervised

release on both Counts I and II, to be served concurrently.     The
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court imposed a $200 special assessment, $100 for each count. Both

the government and defense counsel failed to catch the district

court's error sentencing the defendant on Count II when he only

pled to Count I, and the district court entered judgment against

the defendant on both counts.

                             As the government concedes, the district court erred

when it entered judgment against the defendant on both counts.

Thus, we remand this action and direct the district court to vacate

the          concurrent                         term           of   imprisonment,   supervised   release,   and

second $100 special assessment imposed on Count II, and to dismiss

Count II of the indictment.1

                             So ordered.




                                                            
              1
       The defendant also asks this court to remand for the district
court to resentence him under the Sentencing Commission's
Amendment 782, which decreased applicable base offense levels for
many drug violations. See U.S.S.G. App. C, Amends. 782, 788 (Nov.
1, 2014). Such a directive from this court is not in order. In
the first place, the proper course for "a defendant who seeks
resentencing under a retroactive guideline amendment is to file a
motion in the district court." United States v. Jones, 

, 390 (1st Cir. 2015). In any event, as the district court
observed during the defendant's sentencing hearing, Amendment 782
does not affect his sentence because his career offender status
dictated his base offense level calculation, not the quantity of
drugs involved in the offense.     Compare U.S.S.G. § 4B1.1, with
U.S.S.G. § 2D1.1.      To the extent that the defendant seeks
resentencing on other grounds — an argument that is sparse at best
and appears only in his reply brief — he cites no controlling
authority warranting a remand for resentencing on Count I.


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