                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                               No. 01-60269
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JOSHUA JASON KEEN,

                                         Defendant-Appellant.


                        --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                       No. 3:00-CR-120-ALL-WS
                        --------------------

                               March 6, 2003



                       ON PETITION FOR REHEARING

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*



     IT IS ORDERED that the petition for rehearing is GRANTED.            The

prior opinion, issued November 26, 2002, is WITHDRAWN, and the

judgment is AFFIRMED IN PART and REVERSED AND REMANDED IN PART for

factfinding on the career offender enhancement.


     *
        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opinion should not be published and is not precedent except under the limited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. 01-60269
                                    -2-

     Joshua Keen pleaded guilty of one count of cocaine distribu-

tion in violation of 21 U.S.C. § 841(a)(1).         He appeals his 151-

month sentence on the ground that the district court erred in im-

posing a career offender enhancement pursuant to U.S.S.G. § 4B1.1.

     In his petition for rehearing, Keen argues that his 1997       con-

viction in Rankin County, Mississippi, for cocaine possession

should not be counted as a “controlled substance offense” for pur-

poses of the career offender enhancement.        He maintains that that

conviction was for simple possession, which is not a “controlled

substance   offense”   under    the   relevant   sentencing   guidelines.

See U.S.S.G. § 4B1.2(b).       Keen also contends that in addition to

this conviction, his 1995 state conviction and 1996 federal con-

victions of possession with intent to distribute controlled sub-

stances were part of the same transaction as the 1997 Rankin County

conviction.

     Because Keen never raised the specific objection that the 1997

Rankin County conviction was not eligible for computation as a con-

trolled substance offense in the district court, we review for

plain error.   See Douglass v. United Servs. Auto. Ass'n, 79 F.3d

1415, 1428 (5th Cir. 1996) (en banc).         Moreover, we will not con-

sider arguments raised for the first time in a reply brief.        Yohey

v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).        Nevertheless, be-

cause (1) the record is undeveloped as to whether these convictions

constitute one transaction under the relevant guideline, (2) the

1997 conviction for “possession” has not been definitively shown to
                           No. 01-60269
                                -3-

be simple possession, and (3) the government acknowledges an insuf-

ficient factual basis, the judgment is REVERSED AND REMANDED IN

PART for factfinding on the career offender enhancement.

     To the extent Keen argues that his indictment was defective

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it did

not allege his prior convictions, his argument is without merit.

See id. at 480 (stating that “[o]ther than the fact of a prior con-

viction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt”).   Accordingly, the judgment is

AFFIRMED IN PART.

     PETITION FOR REHEARING GRANTED; OPINION WITHDRAWN; JUDGMENT

AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR FACTFINDING.
