United States v. Morales-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2005

Charles R. Fulbruge III
Clerk
No. 04-20887
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO MORALES-GARCIA,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-252-ALL

Before JONES, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Alberto Morales-Garcia pleaded guilty to being found in

the United States following deportation in violation of 8 U.S.C.

§ 1326(a), (b)(1) and (b)(2). Because Morales-Garcia had been

deported subsequent to a conviction for a drug trafficking offense,

his offense level was enhanced by sixteen levels under the then

mandatory Sentencing Guidelines. Morales-Garcia’s argument that

the treatment of prior convictions as sentencing factors rather

than offense elements under 18 U.S.C. § 1326(b)(1), (b)(2) is

*
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opinion should not be published and is not precedent except under the limited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.
unconstitutional is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998).

Morales-Garcia contends and the Government concedes that

the district court plainly erred in enhancing his offense level by

sixteen levels because he had not been convicted of a felony drug-

trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(I). Simple

possession of a controlled substance does not qualify as a drug-

trafficking offense for purposes of the enhancement. United States

v. Caicedo-Cuero, 312 F.3d 697, 707 (5th Cir. 2002). Because the

imposition of a sentence based on the unsupported enhancement is

plain error that affected Morales-Garcia’s substantial rights, the

sentence imposed by the district court is VACATED, and the matter

is REMANDED to the district court for resentencing. See United

States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002).

Morales-Garcia also argues that he should be resentenced

because the district court erred in sentencing him under a

mandatory guidelines scheme invalidated by United States v. Booker,

125 S. Ct. 738 (2005). Given that Morales-Garcia’s sentence has

been vacated, it is not necessary to address the Booker issue. See

United States v. Southerland, 405 F.3d 263, 270 (5th Cir. 2005).

SENTENCE VACATED and REMANDED FOR RESENTENCING.