           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 18, 2009

                                       No. 08-40764                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.


OSCAR CASTELLANO-MARTINEZ

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                USDC No. C-08-70


Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.
PER CURIAM:*
       The grand jury returned a one count indictment against Oscar Castellano-
Martinez, charging §§ 1326(a) and 1326(b), with a maximum penalty of twenty
years’ imprisonment. Upon a plea of guilty to the single count, the district court
sentenced him to thirty-six months in prison. Concluding that the proceedings
were infected by the then-evolving principles of Apprendi, we VACATE 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40764

judgment of conviction and sentence and REMAND to allow proceedings to
commence afresh, including rearraignment, acceptance of any tendered plea of
guilty in which Castellano-Martinez admits to the conduct supporting the charge
under §§ 1326(a) and 1326(b), which under Apprendi includes the elements of
both, or to trial upon a plea of not guilty entered by Castellano-Martinez or the
court. Nothing herein forecloses the usual processes of plea bargaining.


HAYNES, Circuit Judge, concurring. I concur in remanding this case to the
district court to consider this case anew in light of developments in the law. See,
e.g., United States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir. 2008).




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