
    UNITED STATES of America, Appellee, v. Johnny Nunez GARCIA, aka Superior, aka Supreme, Defendant-Appellant, Javier Lopez, aka Twin, Daniel Feliz, aka no name, Hemphill Garcia, aka Potato Face, Junuel Alvarez, Kevin Vasquez, aka Kakaito, Carlos Carrera, aka Mexico, Oliver Beloz, aka Shorty, Eric Araujo, Defendants.
    No. 13-317.
    United States Court of Appeals, Second Circuit.
    Oct. 29, 2014.
    Julia Pamela Heit, New York, NY, for Defendant-Appellant.
    Michael Ferrara, Assistant United States Attorney (Ryan P. Poscablo, Michael A. Levy, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
    PRESENT: AMALYA L. KEARSE, CHESTER J. STRAUB, and RICHARD C. WESLEY, Circuit Judges.
   SUMMARY ORDER

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)(l)(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, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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)(l)(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.  