
    UNITED STATES of America, Plaintiff-Appellee v. Oscar CASTELLANO-MARTINEZ, Defendant-Appellant.
    No. 08-40764.
    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 2009.
    
      James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit Judges.
   PER CURIAM:

The grand jury returned a one count indictment against Oscar Castellano-Mar-tinez, 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 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). 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     