IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60269
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA JASON KEEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
No. 3:00-CR-120-ALL-WS
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March 6, 2003
ON PETITION FOR REHEARING
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that the petition for rehearing is GRANTED. The
prior opinion, issued November 26, 2002, is WITHDRAWN, and the
judgment is AFFIRMED IN PART and REVERSED AND REMANDED IN PART for
factfinding on the career offender enhancement.
*
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opinion should not be published and is not precedent except under the limited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.
No. 01-60269
-2-
Joshua Keen pleaded guilty of one count of cocaine distribu-
tion in violation of 21 U.S.C. § 841(a)(1). He appeals his 151-
month sentence on the ground that the district court erred in im-
posing a career offender enhancement pursuant to U.S.S.G. § 4B1.1.
In his petition for rehearing, Keen argues that his 1997 con-
viction in Rankin County, Mississippi, for cocaine possession
should not be counted as a “controlled substance offense” for pur-
poses of the career offender enhancement. He maintains that that
conviction was for simple possession, which is not a “controlled
substance offense” under the relevant sentencing guidelines.
See U.S.S.G. § 4B1.2(b). Keen also contends that in addition to
this conviction, his 1995 state conviction and 1996 federal con-
victions of possession with intent to distribute controlled sub-
stances were part of the same transaction as the 1997 Rankin County
conviction.
Because Keen never raised the specific objection that the 1997
Rankin County conviction was not eligible for computation as a con-
trolled substance offense in the district court, we review for
plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1428 (5th Cir. 1996) (en banc). Moreover, we will not con-
sider arguments raised for the first time in a reply brief. Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Nevertheless, be-
cause (1) the record is undeveloped as to whether these convictions
constitute one transaction under the relevant guideline, (2) the
1997 conviction for “possession” has not been definitively shown to
No. 01-60269
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be simple possession, and (3) the government acknowledges an insuf-
ficient factual basis, the judgment is REVERSED AND REMANDED IN
PART for factfinding on the career offender enhancement.
To the extent Keen argues that his indictment was defective
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it did
not allege his prior convictions, his argument is without merit.
See id. at 480 (stating that “[o]ther than the fact of a prior con-
viction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt”). Accordingly, the judgment is
AFFIRMED IN PART.
PETITION FOR REHEARING GRANTED; OPINION WITHDRAWN; JUDGMENT
AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR FACTFINDING.