684 N.E.2d 427 (1997)
291 Ill. App.3d 769
225 Ill.Dec. 742
Heinz BOSSMAN, Marie Bossman, James Hibbett, Beverly Hibbett, Peter Rapacz, Sharon Rapacz, W. Thomas Santarelli, and Shirley Santarelli, Plaintiffs-Appellants,
v.
The VILLAGE OF RIVERTON, Georgeana, Lyons, Charles R. Burris, and Carol J. Burris, Trustees of the Charles R. Burris and Carol J. Burris Revocable Living Trust Dated October 1, 1993, Defendants-Appellees, and Casey's General Stores, Inc., Defendant-Intervenor.
No. 4-97-0047.
Appellate Court of Illinois, Fourth District.
Argued June 18, 1997.
Decided August 29, 1997.
*428 Michael A. Myers, argued, Thomas H. Wilson, Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Springfield, for Heinz Bossman.
John M. Myers, argued, Rabin, Myers & Hanken, P.C., Springfield, for The Village of Riverton.
Carl O. Hoffee, argued, R. Kurt Wilke, Barber, Segatto, Hoffee & Hines, Springfield, for Georgeana Lyons.
Justice COOK delivered the opinion of the court:
Plaintiffs sought a declaratory judgment that an ordinance rezoning neighboring property was unconstitutional. The trial court, in a one-sentence order, entered summary judgment for defendants. Plaintiffs appeal. We hold, based on the clear and convincing evidence contained in the record, that the rezoning was spot zoning. We reverse and remand with directions for the trial court to enter summary judgment in favor of plaintiffs.
The Village of Riverton (Village) is a community of 2,700 persons, located about 10 miles east of Springfield. At the southwest corner of Lincoln Avenue and Seventh Street in Riverton, in an area zoned R-1 (residential), the Charles R. Burris and Carol J. Burris Revocable Living Trust dated October 1, 1993 (Burris Trust), owned a portion of a residential lot, with a frontage on Seventh Street of 50 feet. The rest of the Burris Trust lot had been taken for Lincoln Avenue, which at one time was State Route 36. Immediately south of the Burris Trust lot, Georgeana Lyons owned a lot improved with a single-family home. Defendant-intervenor, Casey's General Stores, Inc. (Casey's), purchased the Burris Trust and Lyons properties, then filed a petition with the village board of trustees (Board), seeking reclassification of the properties from R-1 to C-1 *429 (commercial). On December 4, 1995, the Board enacted ordinance 95-30, reclassifying the properties C-1.
Three of the plaintiff families (Bossman, Rapacz and Santarelli) own residential properties on the corners of Lincoln and Seventh; the other (Hibbett) owns a residential property that adjoins the Burris Trust and Lyons properties on the west. The Village was named a defendant in the declaratory judgment action, as were Lyons and the Burris Trust. Casey's was allowed to intervene as a defendant.
To the north of the Burris Trust and Lyons properties, on Seventh Street, there is residential zoning for approximately three blocks (700 feet), at which point the C-1 zoning for Riverton's downtown commercial district begins. To the east of the properties, on Lincoln Avenue, there is residential zoning for approximately three blocks (960 feet), at which point C-1 zoning begins for a commercial district around Lincoln Avenue's intersection with the interstate highway. To the south of the properties, on Seventh Street, there is residential zoning for a similar distance, after which there is agricultural zoning to the Village limits. All the property west of the properties to the Village limits (approximately 2,240 feet) is zoned residential. The block on which the properties are located is residential, as are the adjacent blocks in all directions (there is only one long block to the south, with only one cross street before the agricultural zoning).
Casey's argued the integrity of the R-1 zoning had been destroyed before it entered the picture. The Interurban Restaurant is located across Seventh Street in the second block north of the Burris Trust and Lyons properties, in a building whose commercial use predated the adoption of the Village zoning ordinance in 1968. Across Seventh Street from the restaurant is an elementary school and church. The Village water plant (described in the Village's brief as "an industrial eyesore") is located across Seventh Street, south of the Burris Trust and Lyons properties. The land to the south of the properties is pretty much vacant. There is a Knights of Columbus Hall, a permitted special use, four blocks southwest of the Burris Trust and Lyons properties, on the west side of Third Street. There is a church west of the properties, on the north side of Lincoln Avenue, about 1 1/4 blocks from Seventh Street. Casey's also complained the local newspaper was operated out of a residence on Sixth Street (telephoning and typing for a weekly paper, printing done elsewhere), a dog grooming business was operated out of another residence on Sixth Street, and there was a commercial sign on the Bossman property across Seventh Street from the Burris Trust and Lyons properties (which plaintiffs described as "a small aged, weathered sign tacked to the Bossman's back yard wood privacy fence advertising the Bossman's furniture store in Springfield"). Lincoln and Seventh is the busiest intersection in town, but plaintiffs respond that this is a town of only 2,700 people.
Concern has been expressed over some types of local governmental action in zoning cases:
"It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasijudicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. I need not dwell at length on the obvious opportunity this affords for special privilege, for the granting of favors to political friends or financial benefactors, for the withholding of permits from those not in the good graces of the authorities, and so on. The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. [Citation.]
It is because of this immunity from review that legislative bodies must confine themselves to the prescribing of general rules. If they may undertake to confer upon themselves authority to decide what in fact amount to individual or particular cases, the foundations of our legal system will fast disappear." Ward v. Village of Skokie, 26 Ill.2d 415, 424, 186 N.E.2d 529, *430 533 (1962) (Klingbiel, J., specially concurring).
See also Kotrich v. County of DuPage, 19 Ill.2d 181, 189-90, 166 N.E.2d 601, 606 (1960) (House, C.J., dissenting). In 1967, the Illinois Municipal Code (Ill.Rev.Stat.1967, ch. 24, par. 11-13-1 et seq.) was amended (1967 Ill. Laws 3335 (§ 11-13-1 et seq.)) to incorporate the views expressed in that special concurrence and dissent. Geneva Residential Ass'n, Ltd. v. City of Geneva, 77 Ill.App.3d 744, 754, 34 Ill.Dec. 177,184, 397 N.E.2d 849, 856 (1979).
Sections 11-13-1.1 and 11-13-5 of the Illinois Municipal Code (Municipal Code) require that variances and special use permits be granted only in accordance with established standards (65 ILCS 5/11-13-1.1, 11-13-5 (West 1994)), after a public hearing and findings of fact (65 ILCS 5/11-13-1.1, 11-13-5, 11-13-11 (West 1994)). In municipalities over 500,000, the decision must be made by the zoning board of appeals, the corporate authorities may not overrule that decision, and an appeal lies under the Administrative Review Law. 65 ILCS 5/11-13-4, 11-13-13 (West 1994). Municipalities under 500,000 may utilize that same approach or may reserve the ultimate decision on variances and special use permits to themselves. 65 ILCS 5/11-13-5,11-13-11 (West 1994). Any result that may be obtained through a variance or a special use permit may also be obtained through an amendment to the zoning ordinance, but the Municipal Code does not attempt to regulate zoning amendments, except to require a hearing and to require that in some cases amendments must be approved by a two-thirds vote of the aldermen holding office. 65 ILCS 5/11-13-14 (West 1994). The only real limitation on zoning amendments is the inquiry whether they may constitute spot zoning.
The case of La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 428, 312 N.E.2d 625, 632 (1974), is often cited:
"Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. [Citations.] Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. [Citation.] In [La Salle National Bank] v. [County of Cook], 12 Ill.2d 40, [46-47, 145 N.E.2d 65, 69 (1957),] we reviewed the considerations determining the validity of an ordinance as applied to a particular property and stated that `among the facts, which may be taken into consideration in determining the validity of an ordinance are the following: (1) The existing uses and zoning of nearby property, [citing cases], (2) the extent to which property values are diminished by the particular zoning restrictions, [citing cases], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, [citing cases], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, [citing cases], (5) the suitability of the subject property for the zoned purposes [citing cases], and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citing cases.]'"
It is important to note that in Evanston the municipality rejected the property owner's attempt to rezone the property, and the supreme court affirmed the municipality's decision to stand behind its zoning ordinance. Evanston is not authority for the proposition that a court should give deference to a municipality's decision when it grants a property owner's request for special treatment and engages in spot zoning. See Rodriguez v. Henderson, 217 Ill.App.3d 1024, 1030, 160 Ill.Dec. 878, 882, 578 N.E.2d 57, 61 (1991). The Village cites County of Cook for the deference that should be given the legislative *431 body. Interestingly enough, the court in that case found that the ordinance before it (the original ordinance) was arbitrary and void, and stated that a difference of opinion between the opposing expert witnesses did not require a finding that the reasonableness of the ordinance was debatable. County of Cook, 12 Ill.2d at 47, 145 N.E.2d at 69.
"Spot zoning" is a change in zoning applied only to a small area, which is out of harmony with comprehensive planning for the good of the community; zoning that would violate a zoning pattern that is homogeneous, compact and uniform. Chicago Title & Trust Co. v. Village of Skokie, 60 Ill.App.3d 221, 235, 17 Ill.Dec. 314, 325, 376 N.E.2d 313, 324 (1978). This does not mean that every reclassification of a single tract is void ipso facto; rather, it must be determined whether such change is in harmony with a comprehensive plan for orderly utilization of property in the locality. The size of the rezoned tract or area is merely one factor to consider. Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill.2d 408, 418, 155 N.E.2d 97, 102 (1958) ("it is true that inconsistent zoning of small parcels is not to be encouraged"). Sometimes the original zoning ordinance has made a mistake with regard to a single tract. Bringing that tract into harmony with the surrounding property is not spot zoning, or said another way, is not illegal spot zoning. However, the power to zone or rezone cannot be exercised to satisfy the individual desires of a few. Cosmopolitan National Bank v. City of Chicago, 27 Ill.2d 578, 584-85, 190 N.E.2d 352, 356 (1963) (amendatory ordinance void where no change in general character or existing uses in neighborhood).
It would be difficult to find spot zoning in an area where conflicting uses were haphazardly mixed. Such mixing may exist either because little thought was given to the establishment of the districts or because other uses over time have been allowed to invade the districts. Nevertheless, the existence of a formal comprehensive plan is not essential to a finding of spot zoning. What is important is that the community in question has given care and consideration to the use and development of the land within its boundaries. First National Bank v. Village of Vernon Hills, 55 Ill.App.3d 985, 990, 13 Ill.Dec. 724, 729, 371 N.E.2d 659, 664 (1977). Of paramount importance is whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established. Truchon v. City of Streator, 70 Ill.App.3d 89, 93, 26 Ill.Dec. 625, 628, 388 N.E.2d 249, 252 (1979). The existence of a comprehensive plan may justify what would otherwise be spot zoning. If the Village here had a comprehensive plan that looked to the construction of a convenience store and gas station in the area of Lincoln and South Seventh Street, this rezoning may not have been spot zoning. However, there clearly was no such plan and the actual zoning pattern in the area was uniformly residential.
A number of early cases are often cited for the statement that in determining the validity of an amendatory or revised ordinance, the factors to be considered are the same as those involved in ascertaining the legality of the initial ordinance. Garner v. City of Carmi, 28 Ill.2d 560, 564, 192 N.E.2d 816, 818-19 (1963) (amendatory ordinance found invalid); Exchange National Bank v. County of Cook, 25 Ill.2d 434, 441, 185 N.E.2d 250, 254 (1962) (refusal to amend ordinance sustained). That statement seems to have originated in Trust Co. v. City of Chicago, 408 Ill. 91, 100, 96 N.E.2d 499, 504 (1951), where the court was making the point that amendments to a zoning ordinance could be struck down just like the original zoning ordinance itself, that the repeal of an ordinance is not immune from constitutional attack. (It has been argued that after property owners have relied on the original ordinance it cannot be changed.) The amendatory ordinance in Trust Co. was in fact found to be arbitrary and unreasonable. The inference cannot be drawn from these cases that spot zoning stands on equal footing with other zoning. "An amendatory zoning ordinance cannot be sustained if the evidence fails to show that it was passed for the public good, but instead tends to show that it was passed in deference to the wishes of certain individuals." Trust Co., 408 Ill. at 100-01, 96 N.E.2d at 504-05.
*432 Casey's argues its project will bring additional jobs, additional tax revenue, and competition to Riverton, citing Westwood Forum, Inc. v. City of Springfield, 261 Ill. App.3d 911, 918-19, 199 Ill.Dec. 800, 806, 634 N.E.2d 1154, 1160 (1994). One of the justifications for a zoning ordinance is that it "promotes the health, safety, morals or general welfare of the public." County of Cook, 12 Ill.2d at 47, 145 N.E.2d at 69. A municipality that requires additional housing for its residents, for example, may zone single-family areas for multifamily use. Trust Co., 408 Ill. at 101-02, 96 N.E.2d at 505. Public waterworks, fire stations, hospitals and the like may have a substantial relationship to the public welfare. See 83 Am.Jur.2d Zoning & Planning §§ 78, 79, 149, 150 (1992). A municipality may change its ordinance to include uses not originally provided. Oak Forest Mobile Home Park, Inc. v. City of Oak Forest, 27 Ill.App.3d 303, 320-21, 326 N.E.2d 473, 486-87 (1975) (mobile home park). The present case is not an exclusionary zoning case, however. There is another gas station and another grocery store in Riverton, and there are C-1 areas within a reasonable distance of Lincoln and South Seventh Street. The problem here is not a lack of C-1 areas; the problem is that the particular property where Casey's wants to be located is zoned R-1.
Casey's argues that the Village may abandon its zoning ordinance whenever it sees any benefit in doing so. That argument is mistaken. Not every perceived benefit Will justify rezoning, only those benefits that constitute legitimate objectives of zoning. See 83 Am.Jur.2d Zoning & Planning § 70 through § 127 (1992). The argument that rezoning would increase the tax base, as opposed to conserving the tax base, has been rejected. "[S]uch a justification is totally illusory and totally violative of all the basic principles of zoning." Concerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill.App.3d 798, 806, 32 Ill.Dec. 563, 569, 395 N.E.2d 944, 950 (1979); see also La Salle National Trust, N.A. v. Village of Westmont, 264 Ill.App.3d 43, 58, 201 Ill.Dec. 725, 734, 636 N.E.2d 1157, 1166 (1994); 83 Am.Jur.2d Zoning & Planning § 83 (1992).
One of the considerations in a rezoning case is whether the property will be more valuable with the rezoning. That consideration has been downplayed, however, since increased value exists in virtually all reclassification cases. Suhadolnik v. City of Springfield, 184 Ill.App.3d 155, 176, 133 Ill.Dec. 29, 41, 540 N.E.2d 895, 907 (1989); Evanston, 57 Ill.2d at 429-30, 312 N.E.2d at 633. That is why the owner seeks reclassificationin order to increase the value of his property. Casey's varies the argument somewhat in this case. Casey's does not argue the increased value to itself, but attempts to focus on the corresponding value to the community. Every new business will bring some additional jobs, additional tax revenue, and competition. Again, that should not be dispositive, since it is true in virtually all reclassification cases.
The control or restriction of competition is not a proper or lawful zoning objective. Cosmopolitan National Bank v. Village of Niles, 118 Ill.App.3d 87, 91, 73 Ill.Dec. 606, 608, 454 N.E.2d 703, 705 (1983). Many zoning decisions have some indirect effect on competition, but it is improper to directly legislate economic protection for one business "against the normal competitive factors which are basic to our economic system." Exchange National Bank v. Village of Skokie, 86 Ill.App.2d 12, 21, 229 N.E.2d 552, 556 (1967); see also 83 Am.Jur.2d Zoning & Planning § 81 (1992). Encouragement of one competitor amounts to discouragement of others. Competition should be managed by market forces, not by local government, which should not be placed in the position of deciding whether more (or less) competition is a good thing. If the rezoning here is allowed to stand, the Village will have given Casey's competitive advantages that the existing gas station does not have. The existing gas station is required to operate out of a C-1 area. Casey's would have a monopoly at the Burris Trust and Lyons location, as no other gas station could locate near it because of the surrounding R-1 zoning.
Defendants' primary argument is that plaintiffs have conceded the ultimate issue in this case: whether there is room for a "legitimate difference of opinion" or whether such *433 "question of reasonableness is fairly debatable." Plaintiffs' expert, Chuck Kirchner, a land-use planner, testified the zoning in the area is homogeneous, compact and uniform, and that the character of the neighborhood is residential. He testified the action of the Village was arbitrary and constituted spot zoning. On cross-examination, Kirchner was asked how a community that lacked a comprehensive plan could ever make a rational decision in a zoning case, and he responded that they would have to listen to each side of the case. Kirchner was asked if the result here was irrational, and he responded "I don't know if it was irrational, it was incorrect." Elsewhere Kirchner was asked if there were arguments in favor of Casey's, and he replied there were no favorable zoning arguments. Fairly read, Kirchner's remarks indicated there were arguments that Casey's would be a desirable addition to Riverton, if it were properly located, but those arguments should not be considered in making a rezoning decision. Kirchner also made the statement, "there was an honest difference of opinion as to whether this was suitable or not." Assuming Kirchner was referring to the views of the Board, and not simply the public at large, it is clear he was suggesting that the Board honestly went outside the factors it could legitimately consider in order to do what it thought best. We disagree that Kirchner conceded the primary issue in this case.
Plaintiffs presented the testimony of Ronald Ladley, a realtor, that the Casey's project would devalue the Santarelli property by 10% to 20% and would also devalue the property of the other plaintiffs. On cross-examination Ladley was asked this question:
"Q. Because of all the factors you mentioned or agreed with about the benefit to the communitythe sales tax, the property tax, the convenience of shopping, the jobsyou would agree that this issue of rezoningon the issue of rezoning, there is room for a honest difference of opinion, would you not?
A. Sure."
Plaintiffs also called a real estate appraiser, Edward H. Hofferkamp, who testified the impact of the Casey's store on neighborhood property values could be substantial, extending even beyond the four corners of the intersection. Hofferkamp on cross-examination was asked about the general benefits to the community and responded that "the impact on the surrounding properties, the negative impact outweighs the positive in this location." Hofferkamp was then asked:
"Q. But there is room for a fair debate on this subject?
A. I guess that is why we're all here.
Q. So you would agree with that?
A. Yes."
When their testimony is viewed in its entirety, plaintiffs' experts did not concede the primary issue in this case. We reject the argument we should decide this case on the basis of a few out-of-context statements and ignore the overall testimony of plaintiffs' expert witnesses.
In Westwood Forum, we upheld a rezoning ordinance, but that case did not involve spot zoning. The rezoned area in that case was not a single tract, but a 93.6-acre tract, and the rezoning was consistent with the comprehensive plan. Westwood Forum, 261 Ill. App.3d at 913, 919, 199 Ill.Dec. at 802, 806, 634 N.E.2d at 1156, 1160. In Truchon, the appellate court reversed a finding of spot zoning, but there was significant evidence in that case that the rezoning from residential to commercial was in conformity with the character of the neighborhood and existing uses and zoning of nearby property. Truchon, 70 Ill.App.3d at 93, 26 Ill.Dec. at 628, 388 N.E.2d at 252. There is no such evidence in the present case. There was also a finding of estoppel in Truchon, where the plaintiffs waited seven months after enactment of the ordinance to file their suit, during which time defendant spent significant sums in reliance on the rezoning. Truchon, 70 Ill.App.3d at 94, 26 Ill.Dec. at 628-29, 388 N.E.2d at 252-53. The present case is most like Concerned Citizens, where the appellate court found a rezoning of undeveloped land from R-3 single family to B-1 commercial retail district constituted spot zoning. Although the area was not totally and uniformly residential, the existing variations were held not to alter the essentially residential character of the property. Concerned Citizens, *434 76 Ill.App.3d at 805, 32 Ill.Dec. at 568, 395 N.E.2d at 949. The property owner also knew at the time he bought the property that it was restricted to residential use. Concerned Citizens, 76 Ill.App.3d at 805, 32 Ill. Dec. at 568, 395 N.E.2d at 949.
Defendants' argument that the surrounding uses are not uniform is without merit. Schools, churches, and home occupations are generally permitted in residential areas. 83 Am.Jur.2d Zoning & Planning § 220 (1992). The Village itself argues that the surrounding uses are not uniform ("the surrounding uses are indubitably commerciala newspaper operation, a dog grooming business, and a commercial sign" (emphasis in original)). If the Village truly believes that, it might consider rezoning the entire area, instead of requiring everyone except Casey's to abide by R-1 zoning. See also Central Transport, Inc. v. Village of Hillside, 210 Ill.App.3d 499, 515, 154 Ill.Dec. 910, 920, 568 N.E.2d 1359, 1369 (1991) (a municipality is estopped from claiming that its own ordinances are invalid). Although the existence of a substantial number of nonconforming uses (uses predating the ordinance) may be destructive of the homogeneity of a residential area, the testimony in this case disclosed only one nonconforming use, the Interurban Restaurant, more than a block away from the Burris Trust and Lyons properties. The existence of nonconforming uses generally cannot be used to justify a rezoning of a single tract. Littlejohn v. City of North Chicago, 259 Ill.App.3d 713, 720-21, 197 Ill. Dec. 355, 361, 631 N.E.2d 358, 364 (1994) (goal is to eliminate nonconforming uses, not to expand them).
The evidence is overwhelming in this case that the existing uses and zoning of nearby property is residential, that plaintiffs' property will be reduced in value by this rezoning, and that the Burris Trust and Lyons properties are suitable and being used for residential purposes. See Evanston, 57 Ill.2d at 429-30, 312 N.E.2d at 633. It is true the Burris Trust property has been vacant for some time, but it appears that vacancy is due to its small size, the fact that a portion of the lot was taken for Lincoln Avenue. The Burris Trust lot is not suitable for any use by itself, but only in conjunction with the adjoining Lyons lot. For the fact of vacancy to be significant there must be proof that improper zoning caused the vacancy, not that the property remained vacant merely because no one attempted to develop it or because of some other reason not zoning related. Suhadolnik, 184 Ill.App.3d at 176, 133 Ill.Dec. at 41, 540 N.E.2d at 907. Casey's knew of the R-1 zoning when it purchased the property. Evanston, 57 Ill.2d at 430, 312 N.E.2d at 633. Rezoning would clearly cause deterioration of the surrounding residential properties and permit the transformation of those properties to other uses. Evanston, 57 Ill.2d at 430, 312 N.E.2d at 633. There has been no change in the general character or existing uses in the neighborhood of the Burris Trust and Lyons properties.
The rezoning here was spot zoning. There is clear and convincing evidence that the rezoning ordinance in this case, as applied to plaintiffs, is arbitrary, unreasonable, and bears no substantial relation to public health, safety, morals, or welfare.
After the witnesses in this case were deposed, both sides filed motions for summary judgment. See 735 ILCS 5/2-701(b) (West 1994) ("if a declaration of rights is the only relief asked, the case may be set for early hearing as in the case of a motion"). All the evidence that the parties wished to present was before the court. It would have been better if the parties had filed a stipulation with the court that this case be decided on the depositions, without any further presentation of evidence, but the intent to follow that procedure seems clear. Even if there is some issue of fact, if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. Fooden v. Board of Governors of State Colleges & Universities, 48 Ill.2d 580, 587, 272 N.E.2d 497, 500 (1971). We conclude that summary judgment is appropriate in this case for whichever side prevailed.
*435 Accordingly we reverse and remand with directions that the trial court enter summary judgment in favor of plaintiffs.
Reversed and remanded with directions.
KNECHT, J., concurs.
McCULLOUGH, J., dissents.
Justice McCULLOUGH, dissenting:
The issue is whether the entry of summary judgment for defendants was improper because (1) either a genuine issue of material fact existed or (2) the documents submitted to the trial court indicate the plaintiffs were entitled to summary judgment. Plaintiffs argued the rezoning ordinance was arbitrary, capricious, and without substantial benefit to the public health, safety, or welfare based on their analysis of the factors referred to in zoning cases and that their experts had not admitted the ultimate issue, i.e., the rezoning was fairly debatable. The trial court may draw inferences from undisputed facts, but should not grant summary judgment if reasonable persons could draw divergent inferences from undisputed facts. Pyne v. Witmer, 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 561, 543 N.E.2d 1304, 1308 (1989).
The parties in this case relied on the factors enumerated in County of Cook, 12 Ill.2d at 46-47, 145 N.E.2d at 69. The majority determines that the decision in County of Cook does not stand for the proposition that deference should be given to the zoning ordinance. That was never argued by the parties, and the case relied on by the majority, Rodriguez (217 Ill.App.3d at 1030, 160 Ill. Dec. at 882, 578 N.E.2d at 61), (1) involved the question of the propriety of a dismissal of a complaint; (2) while questioning the application of the County of Cook factors to cases not involving a property owner's challenge to the original zoning, never said no deference was to be given the municipality's legislative enactment; and (3) nevertheless considered the sufficiency of the complaint in light of the County of Cook factors. Furthermore, this court has applied the principles announced in County of Cook to a case involving neighbors challenging a rezoning ordinance and required that the presumption of validity of the rezoning ordinance be overcome by clear and convincing evidence. Westwood Forum, 261 Ill.App.3d at 912-17, 199 Ill.Dec. at 802-03, 634 N.E.2d at 1156-59. In addition to the County of Cook factors, courts should also consider the need for the use proposed by the property owner and the care with which the community has undertaken its development planning. Westwood Forum, 261 Ill. App.3d at 917, 199 Ill.Dec. at 805, 634 N.E.2d at 1159. No one factor is determinative, and a primary concern is whether the property in question is zoned in conformity with surrounding uses and whether those uses are uniform and established. La Grange State Bank v. County of Cook, 75 Ill.2d 301, 309, 26 Ill.Dec. 673, 676, 388 N.E.2d 388, 391 (1979). Where there is room for a legitimate difference of opinion concerning the reasonableness of the zoning classification or the question of reasonableness is fairly debatable, courts will not interfere with the legislative classification. Bredberg v. City of Wheaton, 24 Ill.2d 612, 625, 182 N.E.2d 742, 748 (1962); Bullock v. City of Evanston, 5 Ill.2d 22, 34, 123 N.E.2d 840, 846 (1954); Oliver Construction Co. v. Village of Villa Park, 257 Ill. App.3d 750, 753, 195 Ill.Dec. 891, 894, 629 N.E.2d 199, 202 (1994).
The majority finds that the ordinance constituted spot zoning. Although spot zoning is looked on with disfavor (Reskin v. City of Northlake, 55 Ill.App.2d 184, 189-90, 204 N.E.2d 600, 603 (1965)), the current legal philosophy about spot zoning is that it is not per se illegal, but it may be improper depending on the application of the factors relating to the reasonableness of the zoning ordinance to the facts of the particular case (101A C.J.S. Zoning & Land Planning § 44 (1979)). In Truchon 70 Ill.App.3d at 93, 26 Ill.Dec. at 628, 388 N.E.2d at 252, the trial court's invalidating of the ordinance rezoning a parcel from single-family residential to commercial to accommodate a liquor store and bar, argued to be impermissible spot zoning, was reversed, where the appellate court found room for a reasonable difference of opinion.
All experts, including plaintiffs' experts, agreed that the rezoning was the result of an honest difference of opinion on its suitability. Defendants' experts clearly agree the action *436 was appropriate and not arbitrary and capricious. Plaintiffs' experts disagree with the action of the Village to varying degrees. Ladley agreed that there was room for an honest difference of opinion on the question of rezoning the subject properties. Hofferkamp testified that the negative impact on the surrounding properties outweighed the positive aspects of rezoning this site, but reluctantly conceded there was room for a fair debate on the question. Kirchner, however, was more evasive. He stated there was an honest difference of opinion, noting the vote of the Village's board of trustees. He also stated that he would not testify it was irrational, but would testify it was improper and further that anyone with his background and school of thought would agree it was improper. According to Kirchner, there may be reasonable argument about getting new business into the Village, but not about zoning these particular pieces of property. To Kirchner, zoning was not debatable in terms of its impact on residential values "and those sorts of things." However, Kirchner's testimony that like-minded persons would agree and that the decision was not irrational does not refute the inference that the issue of rezoning was fairly debatable.
If plaintiffs cannot prove a crucial element of their case, summary judgment is appropriate. Uncontradicted expert testimony in a deposition may be used as a basis for summary judgment where it demonstrates no genuine issue of material fact remains and a verdict would have to be directed. Grote v. Estate of Franklin, 214 Ill.App.3d 261, 269-70, 157 Ill.Dec. 942, 947-48, 573 N.E.2d 360, 365-66 (1991). In spite of Kirchner's testimony, the only reasonable inference to be drawn from the evidence is that there was room for legitimate difference of opinion concerning the reasonableness of the classification and that the question of reasonableness of the rezoning was fairly debatable.
It is obvious from the testimony that the question of whether the rezoning of the subject properties was in conformity with surrounding zoning and whether the surrounding zoning was uniform and established depended on how large the expert drew the circle around the subject property. However, the old commercial district began only 940 feet away. The Knights of Columbus club was also nearby.
There was some opinion that plaintiffs' property values would diminish, but there was no evidence by how much. No appraisals were submitted or made. There was some evidence that the values of plaintiffs' properties as residential property was diminished by the traffic in the area without the rezoning. There was no evidence that rezoning would adversely affect health, safety, or morals, although there were speculative statements that an increase in criminal activity might arise from the location of a convenience store in this area. The evidence was consistent, however, that the Casey's would enhance the general welfare of the public. This is the best location in the town for this type of business because of the traffic flow. It would increase income to the Village and promote employment. One of the lots had been vacant for a long time. The other had an older home. There was testimony that the vacant lot was less suitable for residential purposes because of the traffic in the area. The community had a substantial need for this type of commercial development from a competition and a consumer's benefit standpoint. The hardship imposed on plaintiffs does not necessarily outweigh the relative gain to the public.
While balancing these factors would appear to create a question of fact, this balancing clearly establishes that there was room for a legitimate difference of opinion concerning the reasonableness of the rezoning and that the question of the reasonableness of the rezoning was fairly debatable, as a matter of law. Plaintiffs have not met the clear and convincing burden of proof of the invalidity of the ordinance. The burden of proof is heavy, and it is not met simply by putting on witnesses who would testify that, if they had the authority, they would not have voted for the ordinance. Siegel v. City of Chicago, 127 Ill.App.2d 84, 92, 261 N.E.2d 802, 806 (1970). The judgment of the circuit court of Sangamon County should be affirmed.


126 B.R. 855 (1991)
In re Sa'ad EL-AMIN Debtor.
Carolyn GAUTIER-ADAMS Movant,
v.
Sa'ad EL-AMIN Respondent.
Bankruptcy No. 90-31491-T, Contested Matter No. 90-463.
United States Bankruptcy Court, E.D. Virginia, Richmond Division.
February 11, 1991.
*856 David D. Hopper, Mezzullo & McCandlish, P.C., Richmond, Va., for plaintiff.
Leonard E. Starr, III, Farmer, Starr & Holmes, Sandston, Va., for debtor/defendant.
Kevin R. Huennekens, Trustee, Maloney, Yeatts & Barr, P.C., Richmond, Va.
Mary E. Harkins, Office of the U.S. Trustee, Richmond, Va.

MEMORANDUM OPINION
DOUGLAS O. TICE, Jr., Bankruptcy Judge.
In this contested matter the debtor's former wife, Carolyn Gautier-Adams, filed a motion seeking relief from the automatic stay so that she might pursue collection of a prepetition divorce judgment against the debtor.
A preliminary hearing was held on September 12, 1990, at which time the court took evidence and ruled that the motion would be granted in part and denied in part. After the parties' counsel were unable to agree on the form of an order reflecting the court's ruling, Gautier-Adams requested a final hearing which was held on November 21, 1990. For reasons stated in this opinion the movant's motion will be partially granted and partially denied.

Facts
Prior to filing his bankruptcy petition, the debtor was divorced from Gautier-Adams by a decree entered in the City of Richmond Circuit Court on March 22, 1990. That decree ordered debtor to pay $4,500.00 per month in spousal support and $1,500.00 per month as child support; additionally, debtor was held responsible for maintaining health insurance and payment of all uncovered medical expenses of the couple's child. The decree also found that on January 6, 1990, debtor was in arrears of his support obligations in the amount of $28,000.00.
Also prior to the bankruptcy, the circuit court had found debtor in contempt of court for failure to comply with the divorce decree and ordered him to spend six months in jail. The sentence was suspended upon condition that debtor make support payments to Gautier-Adams in a timely manner and bring current all arrearage within 90 days.[1]

Bankruptcy Case Proceedings
The debtor originally filed a chapter 7 petition on May 11, 1990. The case was converted on the debtor's motion to a case under chapter 11 on June 14, 1990. Gautier-Adams' motion for relief from the automatic stay was filed on July 26, 1990.
In her motion, Gautier-Adams asserted that debtor had violated the circuit court contempt order by failing to make April and May 1990 payments in a timely manner, failing to make payment on the prior arrearage, failing to maintain health insurance coverage for the child, and failing to pay for the child's uncovered medical expenses.
At the September 12, 1990, preliminary hearing this court heard evidence and made findings that the debtor was required by *857 the divorce decree to pay for the child's insurance and other medical costs, to make monthly payments of $6,000.00 to Gautier-Adams, and to make payment of the $28,000.00 arrearage. It appeared from the argument of debtor's counsel that debtor was seeking to modify the support arrearage determined by the circuit court. The debtor also contested the amount due for payment of medical fees, arguing that the decree did not extend to certain medical treatments.
At the preliminary hearing, counsel for Gautier-Adams sought relief from the stay to pursue collection against the debtor, including jail pursuant to the circuit court's contempt ruling.[2] However, this court determined that the debtor's being placed in jail would likely preclude a successful reorganization. I therefore ruled that relief from the stay would be allowed only for the limited purpose of liquidating the amount due; the stay would be continued to prevent any effort at collection from property of the estate. My ruling was to be conditioned on the debtor complying with his medical insurance obligation and continuing to make current support payments.
Although this court had requested counsel for both parties to prepare an order reflecting the ruling of September 12, no order was forthcoming. Instead, in October 1990 Gautier-Adams requested a final hearing on her motion, which was held on November 21, 1990. At this hearing, the debtor testified that he had provided medical insurance for the child. It again appeared that the debtor contested the extent the divorce decree required him to pay medical costs of his daughter, as well as the amount of arrearage. The court took the motion under advisement to allow the parties to submit case authority for their positions. Gautier-Adams filed a brief, but nothing was filed by the debtor.
Gautier-Adams argues that relief from the stay should be granted to allow the state court to determine the extent of the debtor's obligation to pay the daughter's medical expenses and to adjudicate the extent of his support arrearage. In addition, Gautier-Adams argues that relief should be granted to allow her to collect the past due support obligations and to ensure timely future payments. This opinion will address each proposition.

Discussion And Conclusions
I. RELIEF TO ADJUDICATE EXTENT OF SUPPORT OBLIGATION AND ARREARAGE
The parties differ on their interpretation of the extent of the debtor's obligations under the divorce decree. The debtor's position is that the decree does not cover certain medical expenses, and his counsel has also expressed the hope that this court can modify the amount in arrears. Gautier-Adams contends that these disputes must be resolved in the state court rather than the bankruptcy court.
Section 362(d) provides in part that the bankruptcy court may grant relief from the automatic stay for "cause".[3] The statute does not define what constitutes cause, and that is left for case law to determine. Whether to grant the relief is within the discretion of the bankruptcy court. Barclays-American/Business Credit, Inc. v. Radio WBHP, Inc. (In re Dixie Broadcasting, Inc.), 871 F.2d 1023, 1026 (11th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); Pursifull v. Eakin, 814 F.2d 1501, 1504 (10th Cir.1987); MacDonald v. MacDonald (In re MacDonald), 755 F.2d 715, 716 (9th Cir.1985).
*858 In this case there is a dispute both as to the amount of the debtor's support obligations and as to whether they should be modified. The question is whether the existence of either dispute may constitute cause for relief from the stay so that the debtor's former spouse may pursue the matter against debtor in state court.
Some courts have taken the position that the bankruptcy court is without jurisdiction to modify a debtor's support obligation. See, e.g., Sharp v. Harrell (In re Harrell), 33 B.R. 989, 995 (N.D.Ga.1983), aff'd, 754 F.2d 902 (11th Cir.1985) (bankruptcy court is without jurisdiction to establish or modify a debtor's child support obligation); Brown v. Brown (In re Brown), 46 B.R. 612, 614 (Bankr.S.D. Ohio 1985) (bankruptcy court must abstain from considering changed circumstances to modify amount of nondischargeable support obligation); Hund v. Miller (In re Miller), 36 B.R. 403, 405 (Bankr.N.D. Ohio 1984) (bankruptcy court lacks jurisdiction to modify or vacate support order).
Other courts take the position that the bankruptcy court has jurisdiction but should abstain from exercising it. See, e.g., Schmiel v. Judge (In re Schmiel), 94 B.R. 373, 376 (Bankr.E.D.Pa.1988) (bankruptcy court should defer to state court to liquidate amount of nondischargeable debt); Baker v. Baker (In re Baker), 75 B.R. 120, 121 (Bankr.D.Del.1987) (bankruptcy court should defer to the expertise of the state's domestic court in the interest of justice and court economy).
It is difficult to find a bankruptcy court willing to modify a support obligation and actually say that it is doing so. Admittedly, the cases cited above all arose in the context of § 523(a)(5) dischargeability proceedings, and those courts that do permit the court to modify support obligations do so in the process of determining whether the obligation is actually in the nature of alimony, support, or maintenance. See Long v. Calhoun (In re Calhoun), 715 F.2d 1103, 1110 (6th Cir.1983) (in a § 523(a)(5) dischargeability determination bankruptcy court must examine not only the intent of the state court but also determine whether the effect of the state court order is to provide support); Warner v. Warner (In re Warner), 5 B.R. 434, 442 (Bankr.D. Utah 1980) (in a § 523(a)(5) determination bankruptcy court must consider whether present circumstances have changed an order that originally was in the nature of support).
Regardless of whether the ground is jurisdictional, however, the courts' restraint in modifying support obligations is illustrative of the reluctance of bankruptcy courts to make determinations on domestic issues. See, e.g., White v. White (In re White), 851 F.2d 170, 173 (6th Cir.1988); MacDonald v. MacDonald (In re MacDonald), 755 F.2d at 719; Boyd v. Robinson (In re Boyd), 31 B.R. 591, 596 (D.Minn.1983), aff'd, 741 F.2d 1112 (8th Cir.1984). The rationale for this reluctance to modify support obligations is that it involves an area of law traditionally left to state court systems since state courts are considered to have expertise in family law matters. MacDonald, 755 F.2d at 717; Baker, 75 B.R. at 121.
The same reluctance exists in the context of relief stay matters. See, e.g., White, 851 F.2d 170 (affirming bankruptcy court's grant of relief to allow state court divorce action to proceed); MacDonald, 755 F.2d 715 (affirming bankruptcy court's grant of relief for spouse to pursue modification of support order); In re Hill, 102 B.R. 804 (D.Kan.1989) (affirming bankruptcy court's lifting of the stay to permit spouse to proceed with state court action to modify child support); Harrell v. Harrell, 105 B.R. 751 (Bankr.M.D.Ga.1989) (relief granted allowing spouse to proceed in state court to modify child support obligation and visitation rights); Baker, 75 B.R. at 121 (relief granted to permit divorce action to proceed to determine rights in marital property); In re Kincaid, 55 B.R. 652 (Bankr.W.D.Ky. 1985) (relief granted to allow state court to clarify whether its judgment setting aside property settlement and awarding a sum of money to spouse was retroactive to date of divorce).
Based upon the authorities cited above I find that the state court system is the better forum to determine the extent of *859 debtor's spousal and child support obligations. Therefore it is held that cause exists to modify the stay to permit Gautier-Adams to proceed against the debtor in the City of Richmond Circuit Court to determine the amount and kind of support owed, and relief from the automatic stay is granted to this extent. It follows that debtor's hoped for modification of his obligations also must be pursued in the circuit court.
This leaves the second part of the issue, whether relief should be granted from the stay to permit collection of debtor's prepetition arrearage from property of the estate.
II. RELIEF TO PERMIT COLLECTION OF PREPETITION ARREARAGE FROM PROPERTY OF THE ESTATE
Gautier-Adams also requests relief from the stay in order to pursue collection efforts from the debtor. In support, she relies upon the decision of the Fourth Circuit Court of Appeals in Caswell v. Lang (In re Caswell), 757 F.2d 608 (4th Cir.1985), which denied confirmation of a chapter 13 plan that included provision for child support arrearage. Gautier-Adams maintains that since support arrearage cannot be included in a plan of reorganization, relief from the stay is warranted to permit collection, even if this includes imposition of the debtor's jail sentence for contempt of the circuit court.
In applying the rule in Caswell denying confirmability of chapter 13 plans that include support obligations, several bankruptcy courts have either granted relief from the automatic stay or dismissed the case. See In re Warner, 115 B.R. 233 (Bankr.C.D.Cal.1989) (dismissing chapter 13 case); Bruggen v. Bruggen (In re Bruggen), 82 B.R. 515 (Bankr.W.D.Mo.1987) (granting relief from the stay to enforce child support award in state courts); In re Davidson, 72 B.R. 384 (Bankr.D.Colo.1987) (dismissing three chapter 13 cases); McCray v. McCray (In re McCray), 62 B.R. 11 (Bankr.D.Colo.1986) (granting relief from the stay).
Other courts have adopted the extreme position that the automatic stay of § 362 does not apply to enforcement of alimony and child support obligations against the debtor. In re Gomez Molina, 77 B.R. 368 (Bankr.D. Puerto Rico 1987); In re Garrison, 5 B.R. 256 (Bankr.E.D.Mich.1980).
In other chapter 13 cases, courts have declined to enjoin proceedings to collect past due support obligations. See Nelson v. Nelson (In re Nelson), 85 B.R. 731 (Bankr.E.D.Va.1988); In re Bernstein, 20 B.R. 595 (Bankr.M.D.Fla.1982).
This court is not bound by any of the authorities cited above, save the Fourth Circuit Caswell case. Moreover, further discussion of Caswell is warranted since Gautier-Adams relies upon that decision here for a proposition that was not before the court of appeals.
In Caswell, the debtor proposed a chapter 13 plan that created two classes of unsecured creditors, one consisting solely of the debtor's arrearage of $1,400.00 in child support, the other being the rest of his unsecured debts. The plan provided for 100 percent payment of the child support arrearage through the trustee and 25 percent payment on the unsecured obligations. The bankruptcy court denied confirmation of this plan, and the district court affirmed. On appeal to the Fourth Circuit, the debtor asserted that he should be permitted to include child support arrearage in his plan so that he "may be afforded a comprehensive manner of dealing with all his debts, and his creditors may be assured the highest possible payment." Caswell, 757 F.2d at 609. The Fourth Circuit rejected this argument stating: "To permit child support arrearage to be included in a chapter 13 plan would invite a federal bankruptcy court to alter or modify a state court decision regarding the payment and discharge of the overdue debt. This we cannot countenance." Id. at 610.
Caswell did not involve a motion for relief from the automatic stay, and the court of appeals made no ruling with respect to that issue. However, the opinion contains broad language that "[t]he bankruptcy code may not be used to deprive dependents, *860 even temporarily, of the necessities of life." Id. On the other hand, the bankruptcy code has been designed to provide for the efficient and orderly administration of a chapter 11 debtor's reorganization, and the purpose of the automatic stay is to shield the debtor from collection efforts during the administration of the case. Stringer v. Huet (In re Stringer), 847 F.2d 549, 551-52 (9th Cir.1988).
In my view, debtors with domestic support arrearage should not be excluded from the usual bankruptcy process as a matter of law; yet, this is what follows from the rule urged by Gautier-Adams. A better rule would be to make the determination on a case-by-case basis.
Certainly the statutory scheme suggests the automatic stay applies here to the movant's efforts to collect the debtor's domestic support obligations. In listing types of actions subject to the stay, § 362(a) does not specifically mention collection of this type of debt; however, in listing what is excepted from the stay, § 362(b)(2) states that the stay does not apply to collection of support obligations from property that is not property of the estate. 11 U.S.C. § 362(a), 362(b)(2) (1990). Thus a strong inference is that the stay provisions of § 362(a) do apply to the collection of domestic support obligations from property of the estate. If Congress had intended otherwise, it would have been a simple matter to resolve in § 362.
This court notes that Gautier-Adams is not completely foreclosed from collection by § 362. At least in chapter 7 and 11 cases, § 541(a)(6) expressly excludes from property of the estate "earnings from services performed by an individual debtor after the commencement of the case." 11 U.S.C. § 541(a)(6).[4] Therefore, by virtue of § 362(b)(2), a spouse may proceed to collect from income received by the chapter 11 debtor for services performed after the commencement of the case.[5]
More importantly, the debtor in this case is maintaining current postpetition payments. There is no indication that Gautier-Adams or the child are being deprived of the necessities of life.
These reasons, combined with the almost certain failure of the reorganization in the event the debtor is imprisoned, lead me to conclude that relief from the stay in order to permit Ms. Gautier-Adams to pursue collection of the $28,000.00 support from property of the estate is not appropriate at this point in the case. I therefore find that cause does not exist to lift the stay for that purpose. No ruling need be made at this time whether the $28,000.00 support arrearage may be included in a chapter 11 plan.
A separate order will be entered.

ORDER
For the reasons stated in the memorandum opinion entered simultaneously with this order, it is ordered that the movant, Carolyn Gautier-Adams, is granted relief from the automatic stay to determine the extent of the debtor's spousal and child support obligations in the divorce decree entered on March 20, 1990, in the Circuit Court for the City of Richmond. It is further ordered that relief is granted from the automatic stay to permit the movant to seek to modify the debtor's spousal and child support obligations.
To the extent that the movant's motion for relief from the automatic stay requests relief from the stay to permit collection of prepetition arrearage from property of the *861 estate or any other relief, the movant's motion is denied. Continuation of the automatic stay with respect to collection of prepetition arrearage is conditioned upon the debtor maintaining timely payments on spousal and child support obligations accruing postpetition. In the event the debtor defaults in payment of these obligations, the court will reconsider the motion at movant's request.
NOTES
[1]  The date of the circuit court's contempt order is unclear. Gautier-Adams maintains in her motion for relief stay and her brief in support of relief that the order is dated February 7, 1990, nunc pro tunc January 19, 1990. However, the copy of the order attached as Exhibit B to Gautier-Adams' brief in support contains notations which cast doubt on these dates.
[2]  The motion for relief from the stay also requested relief to allow a special commissioner to execute documents to carry out property distribution as ordered in the divorce decree. Since the parties have made no argument regarding this request the court will not address the issue.
[3]  Section 362(d)(1) provides:

(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under sub-section (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest. . . .
11 U.S.C. § 362(d)(1).
[4]  This provision does not apply in chapter 13 cases because the chapter 13 estate includes not only § 541 property, but also postpetition earnings from personal services. 11 U.S.C. § 1306(a).

Note also that there is a diversity of view as to what extent a chapter 11 debtor's earnings from a sole proprietorship are excluded from being property of the estate. Compare In re Fitzsimmons, 725 F.2d 1208 (9th Cir.1984); with In re Cooley, 87 B.R. 432 (Bankr.S.D.Tex.1988); and In re Herberman, 122 B.R. 273 (Bankr.W.D.Tex. 1990). This court adopts no position at this time.
[5]  It is not clear to what extent she can collect, however, from property purchased with postpetition income, since § 541(a)(7) includes in property of the estate: "Any interest in property that the estate acquires after the commencement of the case." 11 U.S.C. § 541(a)(7).


835 So.2d 402 (2003)
Miles Lee BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D01-4342.
District Court of Appeal of Florida, Second District.
January 31, 2003.
James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
Charlie Crist, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
EDWARD F. THREADGILL, Senior Judge.
Miles Brown appeals from the trial court's denial of his motion to withdraw plea after sentencing. We reverse and remand for a new hearing with conflict-free counsel.
*403 On September 12, 2001, Brown filed a pro se motion to withdraw plea within thirty days of sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l). On the next day, defense counsel filed a motion to withdraw plea, stating that Brown would support the motion by his attached letter and orally in court. On September 18, 2001, Brown filed a motion to dismiss his attorney, alleging a conflict of interest. A hearing was held on the motion to withdraw plea on September 20, 2001. Defense counsel told the court that Brown had filed the motion to withdraw his plea and that Brown could explain the motion and "a motion to dismiss me." The trial court clearly considered Brown unrepresented at the hearing.
The trial court then asked Brown to tell him why he wanted his plea set aside. Brown answered, "I had no idea what was going on. I didn't know that I was going to be pleading out to actually doing the time." The trial court proceeded to quote from the transcript of the plea colloquy and then denied the motion to withdraw plea.
On appeal, Brown contends that he was entitled to conflict-free counsel at the hearing on his motion to withdraw his plea. A motion to withdraw a plea pursuant to rule 3.170(2) is a "critical stage in the direct criminal proceeding" at which the defendant is entitled to effective assistance of counsel. Padgett v. State, 743 So.2d 70, 72-73 (Fla. 4th DCA 1999); see Harris v. State, 818 So.2d 567 (Fla. 2d DCA 2002). Among the permissible grounds for a motion to withdraw a plea is an involuntary plea. See Fla. R.Crim. P. 3.170(l); Fla. R.App. P. 9.140(b)(2)(A)(ii)(c); see also Harris, 818 So.2d at 568 n. 1. Here, Brown's motion alleged that he did not fully understand the nature and extent of his plea, that he was threatened or coerced into pleading by his trial attorney, and that his trial attorney admitted to "knowing/having a degree of affiliation" with the victim. He also sought to dismiss his attorney for a conflict of interest, alleging the affiliation with the victim. We note that Brown's allegations are more detailed than the insufficient allegation in Harris that the defendant "did not fully understand the sentence." Harris, 818 So.2d at 568.
The State relies upon Harris in stating that Brown cannot raise the right to conflict-free counsel for the first time on appeal. In Harris, however, it appears that Harris did not express any dissatisfaction with his attorney in the trial court. Here, Brown sought to dismiss his attorney in the trial court; based on an alleged conflict of interest and alleged that his attorney coerced him into entering his plea. "Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea." Lingenfelser v. State, 734 So.2d 472, 472-73 (Fla. 4th DCA 1999). Therefore, we reverse the denial of Brown's motion to withdraw plea and remand for a hearing in which Brown is afforded conflict-free counsel.
Reversed and remanded.
CASANUEVA and SALCINES, JJ, Concur.


729 F.Supp.2d 122 (2010)
Antione TUCKSON a/k/a Antoine Tuckson, Petitioner,
v.
FEDERAL BUREAU OF PRISONS, Respondent.
Civil Action No. 10-1151 (ESH).
United States District Court, District of Columbia.
July 29, 2010.
*123 Antione Tuckson, Washington, DC, pro se.
Sherri Lee Berthrong, U.S. Attorney's Office, Washington, DC, for Respondent.

MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
This matter is before the Court on Antione Tuckson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Petition for Writ of Habeas Corpus, July 6, 2010 [dkt. #1]).[1] Petitioner, who is presently incarcerated and serving an aggregate sentence of 26 months' imprisonment that was imposed by the District of Columbia Superior Court, contends that he is entitled to habeas relief because the Federal Bureau of Prisons (the "Bureau of Prisons") has not given him the proper sentence credit for two periods of time he spent in custody: (1) between March 18, 2009, and April 13, 2009; and (2) from May 13, 2009, to the present. For the reasons stated herein, neither claim has merit and the petition will be denied.

BACKGROUND
The material facts are as follows. In 2005, petitioner was charged with, and ultimately convicted of, receiving stolen property and unauthorized use of a motor vehicle (the "2005 case"). See United States v. Tuckson, No. 2005 FEL 1091 (D.C. Super Ct.) (the "2005 case"); (see also Federal Respondents' Opp'n to Petitioner's Petition for a Writ of Habeas Corpus, July 27, 2010 ("Resp.'s Opp'n"), Ex. 2 [dkt. #4]). On July 6, 2007, while on probation for his conviction in the 2005 case, petitioner was convicted of carrying a pistol without a license and sentenced to 14 months' imprisonment to be followed by a three-year term of supervised release (the "2007 case"). See Judgment, United States v. Tuckson, No. 2007 CF2 2872 (D.C.Super.Ct. July 6, 2007) (Resp.'s Opp'n, Ex. 1). Three days later, on July 9, 2007, petitioner's probation in the 2005 case was revoked, and he was sentenced to 15 months' imprisonment to be followed by a three-year term of supervised release. See Judgment, United States v. Tuckson, No. 2005 FEL 1091 (Resp.'s Opp'n, Ex. 2). The court ordered that the 15-month sentence in the 2005 case was to be served "consecutive to any other sentence being served." (Id.) Thus, petitioner ended up with an aggregate sentence of 29 months' imprisonment for the 2005 and 2007 cases to be followed by a three-year term of supervised release. (Resp.'s Opp'n, Ex. 3, at 14.) On September 10, 2008, petitioner was released and began serving his three-year term of supervised release. (Id., Ex. 3, at 9.)
Petitioner's supervised release was scheduled to expire on September 9, 2011. (Id., Ex. 4, at 2.) However, on March 18, 2009, while still on supervised release, petitioner was arrested and charged with carrying a pistol without a license, impersonating a police officer, and possessing unregistered ammunition (the "March 2009 case"). See Alleged Violation Report, United States v. Tucker, No. 2009 CF2 6407 (D.C.Super.Ct.) (Resp.'s Opp., Ex. 4, at 2). On March 19, 2009, petitioner's community supervision officer reported petitioner's arrest and the new charges pending against him to the United States Parole Commission. (Id., Ex. 4.) Petitioner *124 was kept in custody as a result of the March 2009 charges until April 13, 2009. (Id., Ex. 5, at 4-5.) After his release, on April 30, 2009, the Parole Commission issued a warrant charging petitioner with violating the conditions of his supervised release in the 2005 and 2007 cases based on the March 2009 case. (Id., Exs. 6-7.) Petitioner was arrested and detained pursuant to this warrant on May 13, 2010. (Id., Ex. 7, at 2.)
On June 4, 2009, while still detained pursuant to the April 30, 2009 warrant, another case was filed against petitioner, charging him with first degree theft based on a theft that had occurred on October 25, 2008 (the "June 2009 case"). See United States v. Tuckson, No. 09 CF2 12319 (D.C.Super. Ct. June 4, 2009); (Resp.'s Opp'n, Ex. 9.) On June 24, 2009, petitioner's community supervision officer reported the June 2009 case to the Parole Commission. (Id., Ex. 8.) On August 24, 2009, petitioner was sentenced in the June 2009 case to a term of 16 months' imprisonment to be followed by a 3-year term of supervised release. See Judgment and Commitment Order, United States v. Tuckson, No. 2009 CF2 12319 (D.C.Super.Ct. Aug. 24, 2009) (Resp.'s Opp'n, Ex. 9)
On September 15, 2009, the Parole Commission added petitioner's conviction in the June 2009 case to its April 30, 2009 charge that petitioner had violated the conditions of his supervised release in the 2005 and 2007 cases. (Resp.'s Opp'n, Ex. 10.) On October 1, 2009, the Parole Commission revoked petitioner's supervised release in the 2005 and 2007 cases, relying solely on his conviction in the June 2009 case and not on the charges pending in the March 2009 case, and imposed a 10-month term of imprisonment. (Id., Ex. 13.) The sentence had a retroactive commencement date of May 13, 2009, the date petitioner was taken into custody pursuant to the Parole Commission's warrant. (Id.) As a result of his conviction in the June 2009 case and the revocation of his supervised release in the 2005 and 2007 cases, petitioner is now serving an aggregate sentence of 26 months' imprisonment. The Bureau of Prisons has determined that petitioner's full-term release date for this sentence is July 11, 2011. (Id., Ex. [].) The March 2009 case remains pending, with trial set for October 5, 2010. (Resp.'s Opp'n at 8 n. 6.)
On July 6, 2010, petitioner filed the pending petition for a writ of habeas corpus, contending that the Bureau of Prisons has failed to give him the credit. On July 9, 2009, the Court issued an order to show cause. (Order, July 9, 2010 [dkt. #2]). On July 27, 2010, respondent filed an opposition to the petition, taking the position that the Petition should be summarily denied. (Resp.'s Opp'n at 1.)

ANALYSIS
Petitioner contends that his projected release date of July 11, 2011, is erroneous because: (1) it fails to give him credit for the time he was in custody between March 18, 2009, and April 13, 2009; and (2) it fails to give him credit starting from his return to custody on May 13, 2009. In neither instance is Petitioner's position correct.
Time in Custody Between March 18, 2009, and April 13, 2009: Between March 18, 2009, and April 13, 2009, the record establishes that petitioner was in custody solely due to his arrest in the March 2009 case, and not due to anything related to or arising out of any of the three cases for which he is now serving his 26-month sentence. Under applicable law, petitioner is not entitled to credit for time spent in custody on an unrelated case; rather credit is given for "time spent in custody . . . as a result of the offense[s] for which sentence was imposed." D.C. Code § 24-221.03. *125 Accordingly, petitioner is not entitled to credit for his time in custody between March 18, 2009, and April 13, 2009.[2]
Time in Custody After May 13, 2009: Petitioner is, in fact, receiving credit for all of his time in custody after May 13, 2009. Based on the 26-month sentence petitioner is presently serving, the Bureau of Prisons has determined his projected release date to be July 11, 2011. (Resp.'s Opp'n, Ex. 3, at 7.) The record establishes that in making that determination, the Bureau used May 13, 2009, as the date petitioner began serving his sentence. (Resp.'s Opp., Ex. 3, at 6-7.) Indeed, if the Bureau were not giving petitioner credit starting from May 13, 2009, his projected release date on a 26-month sentence would have to be after July 11, 2011. Accordingly, petitioner's claim that he is not receiving credit for time served after May 13, 2010, is based on a misunderstanding of the record.

CONCLUSION
For the reasons set forth above, petitioner has been awarded all the sentence credit to which he is entitled. Accordingly, petitioner has made no showing that he "is in custody in violation of the Constitution. . . of the United States," 28 U.S.C. § 2241(c)(3), and his petition for habeas corpus will be denied. A separate Order denying the petition accompanies this Memorandum Opinion.
NOTES
[1]  Although petitioner named the Federal Bureau of Prisons as the respondent in this case, the only proper respondent is the warden of the prison where the petitioner is being held. Accordingly, the Court will substitute the Warden of the D.C. Correctional Treatment Facility, John Caulfield, as respondent.
[2]  Petitioner cites to various Parole Commission regulations concerning reparole guidelines to support his claim. (Petition at 2.) However, these regulations pertain only to the Parole Commission's determination of an appropriate prison term for a supervised release violation and eligibility for reparole, see D.C. Code § 24-403(b)(6), and do not bear on the Bureau of Prison's calculation of credit.


365 Mich. 429 (1962)
113 N.W.2d 220
In re O'DELL.
Calendar No. 49,558.
Supreme Court of Michigan.
Writ dismissed February 13, 1962.
*430 Francis Richard O'Dell, in propria persona.
Paul L. Adams, Attorney General, Joseph B. Bilitzke, Solicitor General, and Noble O. Moore, Prosecuting Attorney, for the people.
DETHMERS, C.J.
On April 8, 1960, petitioner O'Dell entered a plea of guilty in the Calhoun county circuit court to a charge of attempt to take indecent liberties with a minor female child. He was sentenced by the court to serve not less than 3 nor more than 5 years in prison. He entered prison and started serving the sentence.
The sentencing court had been under the impression that the applicable statute, CLS 1956, § 750.336 (Stat Ann 1954 Rev § 28.568), fixed 5 years as the maximum. Thereafter he learned that the maximum it prescribes is 10 years.
The court then issued a writ of habeas corpus directing the presenting of O'Dell in court. On November 4, 1960, O'Dell was, in conformity with the writ, brought before the court. The court entered an order vacating the sentence and setting aside the plea of guilty. O'Dell was rearraigned on the same charge and the court then informed him that the maximum sentence permitted under the statute was 10 years. O'Dell again entered a plea of guilty. The court thereupon sentenced him to prison for a term of from 3 to 10 years with credit for time served on the previous sentence together with any good-time credit earned thereon.
On April 11, 1961, O'Dell filed in this Court his petition for a writ of habeas corpus based on the ground that after imposition of the 3-to-5 year sentence in April of 1960 and his commencement of service in prison thereunder, jurisdiction over him passed out of the hands of the sentencing court so that it no longer had the power to vacate the former and impose the latter sentence.
*431 Of interest, in this connection, is In re Pardee, 327 Mich 13, holding, in accord with cases therein cited, that the maximum term is fixed by law, that a lesser maximum provided in a sentence is a nullity and that the maximum fixed by statute should be read into the sentence. That means, in the instant case, that the original sentence must be read as having been for 3 to 10 years. Of interest, as well, is In re Lemire, 360 Mich 693, holding that imposition of an unlawful sentence by a sentencing judge does not so exhaust his sentencing power as to preclude his exercising it again to impose a valid sentence.
We note, however, that nothing in the record brought before us indicates or establishes that, by reason of accumulation of earned good time or for any other reason whatsoever, O'Dell would have been entitled to his release under either sentence when his petition herein was filed in April of 1961, or that he is on this date.
If the court had been without jurisdiction to vacate the first sentence and impose the second, from lack of anything appearing of record to the contrary it would still be necessary to hold that O'Dell is lawfully detained in State prison under the first sentence. If, on the contrary, the court had power, as it did, to vacate it, then it had like authority to impose the second sentence. Under it O'Dell is lawfully detained as well.
It follows that the writ should be and it is dismissed.
CARR, KELLY, KAVANAGH, SOURIS, and OTIS M. SMITH, JJ., concurred.
BLACK, J., did not sit.
ADAMS, J., took no part in the decision of this case.


                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                     December 21, 2005
                      UNITED STATES COURT OF APPEALS
                                                                        Clerk of Court
                                   TENTH CIRCUIT

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-6187
 v.
                                                 (D.C. No. 03-CR-261-T)
                                                       (W.D. Okla.)
 RONALD DANIEL KELLY,

          Defendant - Appellant.

                             ORDER AND JUDGMENT *

Before EBEL, McKAY and HENRY, Circuit Judges.

      Ronald Kelly pleaded guilty to possession of pseudoephedrine with intent

to manufacture methamphetamine. He claims that the district court committed

both constitutional and non-constitutional Booker error in sentencing him.

      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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.
Because we remand for resentencing based on non-constitutional Booker error, we

need not address whether remand is required based on constitutional Booker error.

                               I. BACKGROUND

      In 2003, agents learned from a confidential source that Mr. Kelly and a

partner were attempting to acquire methamphetamine precursors. An undercover

agent arranged to provide the two men with pseudoephedrine, which Mr. Kelly

planned to use to make methamphetamine. The agent claims that Mr. Kelly

wanted five cases of pseudoephedrine and that Mr. Kelly said the five cases

would produce at least two and a half pounds of methamphetamine. The five

cases that the agent brought each contained 144 bottles of 60 count, 60 mg

tablets, equating to 2.592 kilograms of pseudoephedrine. Mr. Kelly was arrested

while accepting the cases.

      Mr. Kelly pleaded guilty to knowing possession of pseudoephedrine with

intent to manufacture a controlled substance, a crime under 21 U.S.C. § 841(c)(1).

The presentence report calculated his base offense level as 36 based on possession

of between 1 and 3 kilograms of pseudoephedrine. See United States Sentencing

Guidelines Manual (“U.S.S.G.”) § 2D1.11(d)(2). Mr. Kelly’s attorney filed an

objection to the presentence report, claiming that Mr. Kelly thought he was

receiving five smaller cases each containing 72 bottles with 36 pills per bottle, for

                                        -2-
a total of .813 kilograms, which would correspond to a base offense level of 34.

See U.S.S.G. § 2D1.11(d)(3).

      Based on evidence introduced at the sentencing hearing, the district court

overruled Mr. Kelly’s objection, reduced the offense level by three based on Mr.

Kelly’s acceptance of responsibility, and sentenced him to 151 months in prison

— the bottom of the Guideline range. Mr. Kelly addressed the court at the

hearing, stating in part that “I realize that the guidelines are set, but I do feel that

they’re unconstitutional in their disparity from violent crimes to non-violent

crimes, and they also don’t allow the Court to have a discretionary manner in

individual cases.” Mr. Kelly now appeals his sentence.

      In March of this year, we denied the government’s motion to enforce the

waiver provisions in Mr. Kelly’s plea agreement. In April, Mr. Kelly filed a

Motion to Relieve Appointed Counsel and To Proceed Pro Se, claiming that his

court-appointed appellate attorney “has failed to provide copies of any Briefs or

Motions as promised and requested by Movant; has avoided communication with

Movant regarding movant’s case; has failed to prosecute Movant’s appeal; [and]

has failed to file appropriate supplemental authority brief-letters which are crucial

and essential to Movant’s case.” The attorney has since filed both opening and

reply briefs on appeal.

                                          -3-
                                II. DISCUSSION

      A. Mr. Kelly’s motion to proceed pro se

      As an initial matter, we deny Mr. Kelly’s motion to remove his appointed

counsel. The attorney has apparently provided adequate representation for Mr.

Kelly in this appeal, and given that we grant relief to Mr. Kelly on the basis of

that representation, we see no need to allow Mr. Kelly to proceed pro se.

      B. Mr. Kelly’s arguments on the merits

      On the merits, Mr. Kelly 1 claims that in light of United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), the district court violated his Sixth

Amendment rights by enhancing his sentence based on a finding by a

preponderance of the evidence as to the amount of pseudoephedrine Mr. Kelly

possessed. Mr. Kelly also claims that the district court committed non-

constitutional Booker error by applying the Guidelines in a mandatory fashion.

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir.) (en banc)

(distinguishing constitutional and non-constitutional Booker error), cert. denied,

126 S. Ct. 495 (2005). He thus contends that remand for resentencing is required.

In addition, Mr. Kelly claims that on remand it would violate his due process

rights for the sentencing judge to find facts under the remedial Booker opinion.

      Although made by his appointed counsel, we attribute these arguments to
      1

Mr. Kelly.

                                        -4-
            1. Booker error

      We agree that the district court committed non-constitutional Booker error

by treating the Guidelines as mandatory rather than discretionary. See Gonzalez-

Huerta, 403 F.3d at 731–32. Because Mr. Kelly preserved the error for appeal by

objecting pro se at sentencing that the Guidelines “don’t allow the Court to have a

discretionary manner in individual cases,” we must remand for resentencing

unless that error was harmless. United States v. Geames, 427 F.3d 1333, 1339

(10th Cir. 2005).

      In United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.

2005), we held that where the district court mandatorily imposed a sentence that

      was already at the bottom of the guidelines range, to say that the district
      court would have imposed the same sentence given the new legal
      landscape (even after consulting the Sentencing Guidelines in an
      advisory capacity) places us in the zone of speculation and
      conjecture—we simply do not know what the district court would have
      done after hearing from the parties.

We thus found that the error in Labastida-Segura was not harmless. Id.

Similarly, because Mr. Kelly was sentenced at the bottom of the Guidelines range,

and because there is no indication that the district court would have imposed the

same sentence under a discretionary sentencing scheme, we cannot conclude that

                                         -5-
the error was harmless. See United States v. Nickl, 427 F.3d 1286, 1302 (10th

Cir. 2005). We therefore remand for resentencing. 2

               2. Due process

         Mr. Kelly claims that because his offense was committed before the

Supreme Court’s decision in Booker, at resentencing the district court should be

“limited to sentencing Mr. Kelly based on the facts admitted in his guilty plea.”

He claims that “taking into account additional facts not admitted in connection

with the guilty plea, would violate ex post facto principles inherent in the Due

Process Clause of the Fifth Amendment.” And, because the guilty plea merely

refers to “possession of pseudoephedrine,” not to any specific drug quantity, Mr.

Kelly argues that at resentencing his base offense level should be 12 — based on

the smallest amount of pseudoephedrine in the Guidelines. See U.S.S.G.

§ 2D1.11(d)(14). In the alternative, Mr. Kelly argues that any facts used at

resentencing to increase his punishment must be found beyond a reasonable

doubt.

         Mr. Kelly’s arguments are without merit. In United States v. Rines, we

rejected the argument that applying Booker’s “remedial holding in sentencing for

an offense that predated Booker would violate the Fifth Amendment’s Due

       Because we conclude that resentencing is required based on non-
         2

constitutional Booker error, we need not address whether remand is also required
due to constitutional Booker error.

                                         -6-
Process Clause.” 419 F.3d 1104, 1106 (10th Cir. 2005). As we made clear,

accepting this argument would be “contrary to the Supreme Court’s explicit

instructions in Booker,” id., since the Supreme Court specifically held that “we

must apply today’s holdings—both the Sixth Amendment holding and our

remedial interpretation of the Sentencing Act—to all cases on direct review.”

Booker, 125 S. Ct. at 769 (emphasis added). 3 We note in addition that even if the

district court were precluded from finding facts at resentencing, Mr. Kelly is

incorrect that the base offense level for the smallest amount of pseudoephedrine

would apply because Mr. Kelly admitted in his objection to the presentence report

and at the sentencing hearing that he possessed 0.813 kilograms of

pseudoephedrine. 4

      Mr. Kelly’s alternative argument — that at resentencing any sentence-

enhancing facts must be proven beyond a reasonable doubt — also fails because

      3
       The First, Second, Fifth, Seventh, Ninth, and Eleventh circuits have
similarly rejected ex post facto/due process challenges to application of the
remedial portion of Booker. See United States v. Lata, 415 F.3d 107 (1st Cir.
2005); United States v. Vaughn, --- F.3d ----, 2005 WL 3219706 (2d Cir. 2005);
United States v. Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v.
Jamison, 416 F.3d 538 (7th Cir. 2005); United States v. Dupas, 417 F.3d 1064
(9th Cir.), amended by 419 F.3d 916 (9th Cir. 2005); United States v. Duncan,
400 F.3d 1297 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).
      4
        Mr. Kelly contends that he is not bound by this admission because it was
made by his attorney and is therefore not a “fact admitted by a defendant.”
However, counsel’s admission to a drug amount made on Mr. Kelly’s behalf is
sufficient. See United States v. Buonocore, 416 F.3d 1124, 1134 (10th Cir.
2005).

                                        -7-
after Booker “district courts are still required to consider Guideline ranges, which

are determined through application of the preponderance standard, just as they

were before.” United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.)

(citation omitted, emphasis added), cert. denied, 126 S. Ct. 468 (2005). Although

Mr. Kelly feels that the opinion in Magallanez was in error, we are bound by our

precedent.

                               III. CONCLUSION

      For the foregoing reasons, we REMAND this case to the district court for

resentencing.

                                       ENTERED FOR THE COURT

                                       David M. Ebel
                                       Circuit Judge

                                         -8-