United States v. Perez

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 06-40643
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT PEREZ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Texas, Victoria
No. 6:05-CR-00085
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
After considering the briefs, oral arguments and
pertinent parts of the record in this case, we remain uncertain
about the district court’s reasoning when it refused to credit
Perez’s federal sentence for the nine months he had served in state
custody on an offense for which he had not at the date of
sentencing been formally charged in state court. The court
probably erred if it was trying to apply U.S.S.G. § 5G1.3(b); it
overlooked U.S.S.G. § 5G1.3(c); and we cannot discern the legal

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basis for its deferring the decision whether to award credit for
the ongoing state imprisonment. We need not further analyze these
issues, however, because Perez was recently sentenced on a guilty
plea to serve a lengthy state imprisonment on the underlying state
offenses. We therefore VACATE and REMAND the sentence with
instructions to the district court to exercise its discretion,
pursuant to the Guidelines and Booker, in light of the foregoing
development, and to articulate the reasons for its decision.
VACATED AND REMANDED.

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