                                                       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.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:03-CR-1452-ALL
                      --------------------

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this opinion should not be published and is not precedent except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
                                 -2-

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
                               -3-

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.
