Opinion
No. 05-41491 Summary Calendar.
May 24, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, (7:05-CR-05-ALL).
Before SMITH, WIENER, and OWEN, Circuit Judges.
Defendant-Appellant Ramon Barrera-Castro appeals his conviction and sentence for attempting to enter the United States after deportation in violation of 8 U.S.C. § 1326(a) (b). He contends that the district court plainly erred in increasing his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1999 and 2002 Texas convictions for possession with intent to deliver a controlled substance, arguing that his prior offenses do not constitute drug trafficking offenses. As Barrera-Castro did not raise this issue in the district court, our review is limited to plain error. See United States v. Green, 324 F.3d 375, 381 (5th Cir. 2003). Barrera-Castro has two prior Texas convictions for possession with intent to deliver cocaine in violation TEX. HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon 1993), which defines "deliver" in relevant part to include "offering to sell a controlled substance, counterfeit substance, or drug paraphernalia." The indictments and the judgments concerning these prior Texas convictions do not provide the specific means of commission of the offenses, and Barrera-Castro has not admitted such facts. The district court plainly erred in increasing Barrera-Castro's offense level relying solely on the factual narrative in the Presentence Report. See United States v. Gonzales, 484 F.3d 712, 715-17 (5th Cir. 2007); see also United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert, denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). The error affected Barrera-Castro's substantial rights because, without the 16-level enhancement, his guidelines sentencing range would have been 37-46 months, much less than his 63-month sentence. See Gonzales, 484 F.3d at 715-16. As the error clearly affected Barrera-Castro's sentence, the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See id. at 716-17. Accordingly, Barrera-Castro's sentence is vacated, and the case is remanded for resentencing in accordance with Gonzales.
Barrera-Castro also challenges the constitutionality of § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Barrera-Castro's 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). Although he contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See Garza-Lopez, 410 F.3d at 276. Barrera-Castro properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. Barrera-Castro's conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.