Summary Calendar UNITED STATES OF AMERICA v. Esequiel De La Rosa-Soria

* 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that this opinion should not be published and is not precedent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 THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50003
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ESEQUIEL DE LA ROSA-SORIA
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-499-ALL-WWJ
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October 15, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Esequiel De La Rosa-Soria appeals his sentence following his
guilty-plea conviction for illegally reentering the United States
after having been previously deported, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). De La Rosa argues that the district court
erred in determining that his cultural assimilation into this
country is not a legally permissible ground for downward
departure under the U.S. Sentencing Guidelines.

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No. 00-50003
-2-
Because “cultural assimilation is a permissible basis for
downward departure,” we VACATE De La Rosa’s sentence and REMAND
to the district court for a determination whether De La Rosa is
entitled to a downward departure on the basis of cultural
assimilation. See United States v Rodriguez-Montelongo, ___ F.3d
___ (5th Cir. Aug 23, 2001, No. 00-51023), 2001 WL 958907, *4.
De La Rosa has filed an unopposed motion for leave to file a
supplemental brief in which he seeks to raise, for the first time
on appeal, an additional issue based on the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The
Government has also filed an unopposed motion for leave to file a
supplemental brief which seeks to address De La Rosa’s new
Apprendi argument. Both motions are denied without prejudice to
De La Rosa’s right to raise his Apprendi issue in the district
court at resentencing.
SENTENCE VACATED; REMANDED FOR RESENTENCING; MOTIONS DENIED.

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