USA v. Oscar Castellano-Martinez

Filing 920091218

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT 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 CastellanoMartinez, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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). 2

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