                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                      October 21, 2004

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 04-50332
                               Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                    versus

RAMON OLVERA-OVALLE, also known as
Jose Humberto Gonzalez-Davila

                                                Defendant-Appellant.



                 Appeal from the United States District Court
                       for the Western District of Texas
                          USDC No. SA-03-CR-513-ALL-XR


Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

       Ramon Olvera-Ovalle (Olvera) pleaded guilty to illegal reentry

into       the   United   States.   He   was   sentenced   to     57     months’

imprisonment, three years’ supervised release, and a $100 special

assessment.

       Olvera argues that the district court erred by declining to

downwardly depart on the mistaken assumption that it lacked the

authority to do so.         However, the record does not clearly reveal

whether the court properly understood its discretion to depart.

       *
      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this opinion should not be published and is not precedent except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.
     In    light   of   the   ambiguity,    we   REMAND    the    case    for

reconsideration of the sentence.1          The only issue on remand is

whether the district court recognized that it had 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, Olvera should be resentenced with the district

court’s full awareness of its discretionary authority.2           We take no

position on what decision the district court should make.

     Olvera also argues that the enhancement of his sentence due to

a prior aggravated felony conviction constitutes a due process

violation in light of Apprendi v. New Jersey,3 because the prior

conviction was not alleged in the indictment.        As Olvera concedes,

this argument is foreclosed.4

     REMANDED FOR RECONSIDERATION OF SENTENCE.




     1
      See United States v. Garcia-Ortiz, 310 F.3d 792, 795-96 (5th
Cir. 2002).
     2
      See U.S.S.G. § 4A1.3(b)(1).
     3
      566 U.S. 430 (2000).
     4
      See Almendarez-Torres v. United States, 523 U.S. 224, 247
(1998); United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.
2003).


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