                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                              April 17, 2007

                           _______________________                        Charles R. Fulbruge III
                                                                                  Clerk
                                 No. 06-40643
                           _______________________

                          UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

                                  ALBERT PEREZ,

                                                            Defendant-Appellant.



          On Appeal from the United States District Court
            for the Southern District of Texas, Victoria
                          No. 6:05-CR-00085


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*

           After       considering     the     briefs,      oral    arguments         and

pertinent parts of the record in this case, we remain uncertain

about the district court’s reasoning when it refused to credit

Perez’s federal sentence for the nine months he had served in state

custody on     an     offense   for   which    he   had     not    at   the    date    of

sentencing     been    formally    charged     in   state    court.         The    court

probably erred if it was trying to apply U.S.S.G. § 5G1.3(b); it

overlooked U.S.S.G. § 5G1.3(c); and we cannot discern the legal



     *
            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opinion should not be published and is not precedent except under the limited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.
basis for its deferring the decision whether to award credit for

the ongoing state imprisonment.     We need not further analyze these

issues, however, because Perez was recently sentenced on a guilty

plea to serve a lengthy state imprisonment on the underlying state

offenses.     We   therefore   VACATE   and   REMAND   the   sentence   with

instructions to the district court to exercise its discretion,

pursuant to the Guidelines and Booker, in light of the foregoing

development, and to articulate the reasons for its decision.

            VACATED AND REMANDED.




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