United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2004
Charles R. Fulbruge III
Clerk
No. 04-40167
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FRANCISCO REYES-JASSO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1452-ALL
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Francisco Reyes-Jasso (Reyes) pleaded guilty to illegal
re-entry following a prior deportation. The district court
sentenced Reyes to 70 months’ imprisonment to run consecutively
to an 18-month sentence on a revocation of supervised release.
Reyes argues that the district court erred by declining to
impose the instant sentence concurrently with the sentence
revoking his supervised release. He asserts that the district
court failed to impose a concurrent sentence based upon the
*
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this opinion should not be published and is not precedent except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. 04-40167
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mistaken assumption that it lacked the authority to do so. The
record does not clearly reveal whether the district court
properly understood its discretion to impose a concurrent
sentence under U.S.S.G. § 5G1.3(c)(Nov. 2003). In light of the
ambiguity, we remand the case for reconsideration of the
sentence. See United States v. Garcia-Ortiz, 310 F.3d 792,
795-96 (5th Cir. 2002). The only issue on remand is whether the
district court recognized that it had the discretion to impose a
concurrent sentence. If the district court was aware of its
discretion but declined to exercise it, then the original
sentence should stand. However, if the district court believed
that it lacked the authority to impose a concurrent sentence,
Reyes should be resentenced with the district court’s full
awareness of its discretionary authority. We take no position on
what decision the district court should make.
For the first time on appeal, Reyes contends that the
“felony” and “aggravated felony” provisions of § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 566 U.S. 430
(2000), because the prior conviction was not alleged in the
indictment. As Reyes concedes, this issue is foreclosed. See
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Reyes further argues that the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied
to sentences determined under the federal sentencing guidelines.
No. 04-40167
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As Reyes also concedes, this argument is foreclosed by this
court’s recent opinion in United States v. Pineiro, 377 F.3d 464,
465-73 (5th Cir. 2004), petition for cert. filed, (U.S. July 14,
2004) (No. 04-5263), but he raises it to preserve it for possible
further review.
REMANDED FOR RECONSIDERATION OF SENTENCE.