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

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-99-CR-499-ALL-WWJ -------------------- 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

(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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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),

.

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,

(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.