
    UNITED STATES of America, Plaintiff-Appellee v. Drayon CONLEY, Defendant-Appellant
    No. 15-10550
    United States Court of Appeals, Fifth Circuit.
    Date Filed: 12/09/2016
    Brian W. Portugal, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee
    James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Amarillo, TX, Michael Arthur Lehmann, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant
    Before KING, CLEMENT, and OWEN, Circuit Judges.
   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

The Supreme Court granted Drayon Conley’s petition for writ of certiorari, vacated this court’s judgment, and remanded the case for further consideration in light of Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Conley v. United States, — U.S. -, 137 S.Ct. 153, 196 L.Ed.2d 6 (2016) (mem.). On remand, we requested letter briefs from the parties regarding whether, in light of Mathis and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), this court should vacate Conley’s sentence and remand for resentencing because the district court committed plain error by finding that Conley’s prior conviction under Texas Health & Safety Code § 481.112(a) constituted a controlled substance offense under U.S.S.G. § 2K2.1(a)(4)(A). In light of Mathis and Hinkle, Conley’s base offense level was erroneously assigned because his prior conviction under Texas Health & Safety Code § 481.112(a) did not constitute a controlled substance offense, and this error was clear. See United States v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015) (“That error was plain and obvious, even though precedent foreclosed it at the time of sentencing, because the error became clear in light of a decision announced while this case was still on direct appeal.”). The Government does not contest the third and fourth prongs of plain error review and does not oppose vacatur of Conley’s sentence and remand for resentencing. Accordingly, we VACATE Conley’s sentence and REMAND for resentencing. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     