                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 8, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-51221
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                       CHERYL YVONNE STONE,

                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-00-CR-292-2-SS
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Cheryl Yvonne Stone, convicted of violating 18 U.S.C.

§§ 922(g)(1) and 924(e) by possessing a firearm as a convicted

felon, appeals her sentence.

     Stone argues that her prior burglary convictions do not

qualify as the three prior convictions required under 18 U.S.C.

§ 924(e)(1).   However, “Burglary of a Building” as defined at

Texas Penal Code § 30.02 does substantially correspond to generic

burglary as required by Taylor v. United States, 495 U.S. 575,

     *
        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that this opinion should not be published and is not precedent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. 02-51221
                                -2-

602 (1990), for the sentencing enhancement under 18 U.S.C.

§ 924(e).   United States v. Silva, 957 F.2d 157, 161-62 (5th Cir.

1992).   As Stone’s burglary offenses were separated by an

intermediate period of non-criminal activity, they were correctly

counted as separate offenses under 18 U.S.C. § 924(e)(1).     United

States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988).

     Stone also argues that the district court erred by not

reducing her offense level for acceptance of responsibility.

Given the highly deferential standard of review, the district

court’s ruling cannot be seen as without foundation.    Cf. United

States v. Brace, 145 F.3d 247, 264-65 (5th Cir. 1998)(admission

to facts of conduct insufficient to require reduction where some

facet of culpability is denied).

     Finally, Stone argues that the district court erred by

declining to downwardly depart on the mistaken assumption that it

lacked the authority to do so.   Courts are permitted to consider

various factors in imposing a sentence, including the “nature of

the circumstances of the offense,” “the need for the sentence

imposed to reflect the seriousness of the offense,” and “the need

to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(1), (a)(2)(A), and (a)(6).

     The record does not clearly reveal whether the district

court properly understood its discretion to depart.    The district

judge, at the resentencing hearing, characterized Stone’s
                           No. 02-51221
                                -3-

sentence as “terribly inequitable” and “atrocious.”    The district

judge, however, stated “I don’t see any way around it in the

state of the present law” and “my hands are tied.”    The

Government argues that due to the history of this case, the

district court should have been aware that it could downward

depart.

     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 depart.   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 depart, Stone 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.

     REMANDED FOR RECONSIDERATION OF SENTENCE.
