F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            AUG 26 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                       No. 03-7110
          v.                                         (D.C. No. 03-CR-37-P)
 RODNEY HADEN SWINDELL,                                 (E. D. Oklahoma)

               Defendant - Appellant.


                            ORDER AND JUDGMENT            *




Before BRISCOE , McKAY , and HARTZ , Circuit Judges.


      Defendant Rodney Swindell pleaded guilty on May 22, 2003, to felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced Defendant to 15 years’ imprisonment under the Armed Career Criminal

Act (ACCA), which subjects a person “who violates [18 U.S.C.] section

922(g) . . . and has three previous convictions . . . for a violent felony or a serious

drug offense” to a minimum of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).

Defendant appeals, arguing that the district court erred in counting one of three


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
prior convictions as a “serious drug offense” within the meaning of the ACCA,

and thereby in enhancing his sentence under the Act. We have jurisdiction over

the appeal under 18 U.S.C. § 3742(a).

      Defendant’s presentence report listed prior convictions for conspiracy to

possess with intent to distribute marijuana, possession with intent to distribute

methamphetamine, and unlawful delivery of a controlled drug. The district court

treated these three offenses as “serious drug offense[s]” within the meaning of the

ACCA.

      One of the convictions, however, did not so qualify. Under the ACCA a

drug conviction must be punishable by 10 years or more in prison to qualify as a

“serious drug offense,” 18 U.S.C. § 924(e)(2)(A); and Defendant’s 1976 federal

conviction for conspiracy to possess with intent to distribute marijuana was

punishable by a maximum of five years in prison at the time. In its answer brief

the government concedes that Defendant’s prior conviction for conspiracy to

possess with intent to distribute marijuana was not a “serious drug offense,” and

that the sentence is therefore incorrect.

      We VACATE Defendant’s sentence and REMAND for resentencing.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                            -2-