
    UNITED STATES of America, Plaintiff—Appellee, v. Peter Bernard CAREY, Jr., Defendant—Appellant.
    No. 04-30222.
    D.C. No. CR-01-00014-DWM.
    United States Court of Appeals, Ninth Circuit.
    Submitted Dec. 6, 2004.
    
    Decided Dec. 10, 2004.
    William W. Mercer, Esq., Office of the U.S. Attorney, Billings, MT, for PlaintiffAppellee.
    Anthony R. Gallagher, Esq., Federal Defenders of Montana, Great Falls, MT, for Defendant-Appellant.
    Before GOODWIN, WALLACE and TROTT, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Peter Bernard Carey, Jr. appeals from the sentence imposed on remand for his conviction by guilty plea to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we vacate and remand for re-sentencing.

United States v. Smith, 387 F.3d 826 (9th Cir.2004), which was published after the district court acted in this case, and which displaces this court’s prior remand, now controls. Thus we vacate the sentence and remand for re-sentencing in light of Smith. See id. at 834-35.

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     