Tran

MEMORANDUM **

Nhan Le Tran appeals his sentence on one count of conspiring to transport stolen computer chips, one count of conspiring to obstruct commerce by robbery, and one count of using a firearm during a robbery. We have jurisdiction under 28 U.S.C. § 1291 , and affirm.

The government concedes that Tran’s criminal history should have been calculated in Category I rather than Category II, and that the district court erred by counting Tran’s conviction in Santa Clara County Superior Court on December 18, 2003 as a prior conviction for purposes of calculating criminal history. We decline the government’s invitation to recalculate the amount of loss, and instead remand so that the district court may consider the government’s argument in the first instance.

As we must vacate this part of Tran’s sentence in any event, we also decline to consider his submission under Fed. R.App. P. 28(j) that his sentencing enhancements are unconstitutional in light of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). The United States Supreme Court has granted certiorari in United States v. Fanfan, — U.S. —-, 125 S.Ct. 12 , 159 L.Ed.2d 838 (2004); United States v. Booker,…