No. 05-11186, Summary Calendar.United States Court of Appeals, Fifth Circuit.
June 28, 2007.
Page 939
Susan B. Cowger, Sarah Ruth Saldana, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
Jason Douglas Hawkins, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:05-CR-52-ALL.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:[*]
Pedro Aguilar-Uriostigue appeals the sentence imposed following his guilty-plea conviction for illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326. He argues that the district court erred in treating his prior Texas conviction for unlawful delivery of a controlled substance as a “drug trafficking offense” for the purpose of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). Because Aguilar-Uriostigue did not object to this adjustment below, we review the district court’s determination for plain error only. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005).
As the Texas statute and Aguilar-Uriostigue’s state indictment indicate that he may have been convicted for activity that does not constitute a drug-trafficking offense under § 2L1.2, the district court plainly erred by applying § 2L1.2(b)(1)(A)(i) on this basis. See United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007). Absent the 16-level adjustment under § 2L1.2(b)(1)(A)(i), the applicable guideline range of imprisonment would have been significantly lower than the imposed sentence, even if an 8-level
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adjustment under § 2L1.2(b)(1)(C) had been applied. This error therefore affected Aguilar-Uriostigue’s substantial rights. See id. Moreover, this error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See id. Aguilar-Uriostigue’s sentence must therefore be vacated on this basis, and the case remanded for re-sentencing.
Aguilar-Uriostigue also challenges the constitutionality of § 1326(b)’s treatment of prior felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. As Aguilar-Uriostigue concedes, his constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), see Garza-Lopez, 410 F.3d at 276, but he raises it here to preserve it for further review.
SENTENCE VACATED; CASE REMANDED FOR RE-SENTENCING.