
    UNITED STATES of America, Plaintiff—Appellee v. Russell MENZIES, also known as John Russell Kincaid, also known as James O’Sullivan, Defendant—Appellant.
    
      No. 06-20004.
    United States Court of Appeals, Fifth Circuit.
    Oct. 12, 2007.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.
    Randy Schaffer, The Schaffer Firm, Houston, TX, for Defendant-Appellant.
    Before JOLLY, DAVIS, and WIENER, Circuit Judges.
    
      
       This opinion supersedes the opinion filed on October 10, 2007; that opinion has been withdrawn as it was filed in error.
    
   PER CURIAM:

Defendant-Appellant Russell Menzies appeals the statutory maximum sentence of 120 months imprisonment imposed following his guilty-plea conviction for possession of a firearm by a convicted felon. On appeal, Menzies advanced four claims of sentencing error: miscalculation of his Guidelines offense level under U.S.S.G. § 2K2.1(b)(1)(C), based on the court’s finding that he possessed between eight and twelve firearms as a convicted felon; the sentencing court incorrectly included two prior felony convictions in calculating his base offense level under U.S.S.G. § 2K1.2(a)(2) and incorrectly determined his criminal history category at IV; the sentencing court abused its discretion in rejecting his request for a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1; and the sentence imposed was unreasonable. Two months after Menzies filed his appellate brief, the government filed a motion to vacate his sentence and remand for resentencing, which a motion panel of this court ordered carried with the case on appeal. In support of its motion, the government conceded that the district court misapplied U.S.S.G. § 2K1.2(a)(2), but the government did not address the remaining charges to the district court’s Guidelines calculation raised by Menzies on appeal.

We have reviewed the briefs of the parties and the record on appeal, as well as the government’s extensive motion to vacate and the appendices thereto, and we conclude that the government’s position is principled, well reasoned, and meritorious. As both the government and Menzies seek vacatur of his sentence, we grant the government’s motion, vacate Menzies’s sentence, and remand the case to the district court for resentencing.

MOTION GRANTED; SENTENCE VACATED; CASE REMANDED 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 Or. R. 47.5.4.
     