#### UNITED STATES of America, Plaintiff—Appellee, v. Abraham MARTINEZ-VARGAS, Defendant—Appellant.

No. 01-10287.

D.C. No. CR-00-00106-DWH.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 2003.

Decided Feb. 24, 2003.

*210Before TROTT, RYMER, and TALLMAN, Circuit Judges.

MEMORANDUM *

Abraham Martinez-Vargas appeals the district court’s sentence. Martinez-Vargas pleaded guilty to illegally re-entering the United States after deportation, a violation of 8 U.S.C. §§ 1326(a) and (b)(2). At the time of sentencing on the federal charge, Martinez-Vargas was serving a state sentence for violating his state probation on an unrelated charge by illegally re-entering the United States. The district court, relying on United States Sentencing Guidelines § 5G1.3(a), held that it was mandated to impose Martinez-Vargas’s federal sentence consecutively to his state sentence.

We review *de novo*the district court’s interpretation of the Guidelines. *United States v. Hughes,*282 F.3d 1228, 1230 (9th Cir.2002). The district court’s application of the Guidelines to the facts of a case is reviewed for abuse of discretion. *United States v. Antonakeas,*255 F.3d 714, 727 (9th Cir.2001).

The district court erred when it held that § 5G1.3(a) applies to Martinez-Vargas. Section 5G1.3(a) applies only “If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status).” Martinez-Vargas illegally re-entered the United States while on state probation. Probation does not constitute a “term of imprisonment” under § 5G1.3(a). *See United States v. Bernard,*48 F.3d 427, 431 (9th Cir.1995). The government conceded in its brief and at oral argument that § 5G1.3(a) does not apply to this case.

The government defends the district court’s analysis by suggesting that— even though subsection (a) does not apply — the district court has discretion under subsection (c) to issue consecutive or concurrent sentences and argues that the district court properly exercised that discretion here. Assuming that the district court *did*have discretion under subsection (c) to impose Martinez-Vargas’s sentence either consecutively or concurrently, then the operative question is whether the district court recognized that it had this discretion. The district court expressly stated that it was *without discretion*and was required to impose the sentence consecutively. Although this statement concerned subsection (a), the district court obviously erred by assuming that it was without discretion.

Martinez-Vargas also argues that the district court erred by refusing to apply § 5G1.3(b). That subsection provides for concurrent sentences if “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the *211offense level.” The district court never considered this argument, basing its analysis on the incorrect view that § 5G1.3(a) applied to Martinez-Vargas. As such, we remand this case for resentencing and allow the district court a chance to consider whether § 5G1.3(b) applies, and, if it does not, whether the district court should — in its discretion — sentence Martinez-Vargas to consecutive or concurrent terms pursuant to subsection (c).

Finally, Martinez-Vargas offers an *Apprendi-based*argument. Our decision in *United States v. Pacheco-Zepeda,*234 F.3d 411, 414 (9th Cir.2000) (as amended), *cert. denied*532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), forecloses that argument.

We VACATE Martinez-Vargas’s sentence and REMAND for resentencing.

*

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.