United States v. Olvera-Ovalle , 110 F. App'x 446 ( 2004 )

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this opinion should not be published and is not precedent except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).
2