United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-50884
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MANUEL ACOSTA-AVITIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-323-1-PRM
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Jesus Manuel Acosta-Avitia appeals from the sentence imposed
following his guilty-plea conviction for illegal re-entry, in
violation of 8 U.S.C. § 1326.
Acosta argues that the district court erred when it
classified Acosta’s prior conviction as a drug-trafficking
offense that warranted a 16-level offense level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A) (2003); that under Apprendi v. New
Jersey, 530 U.S. 466 (2000), his imprisonment term violated due
*
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this opinion should not be published and is not precedent except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.
No. 04-50884
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process because it exceeded the statutory maximum for the charged
offense; that under United States v. Booker, 125 S. Ct. 738
(2005), the district court plainly erred by increasing the
maximum authorized Guidelines sentence based on facts neither
admitted by him nor found by a jury beyond a reasonable doubt;
and that under Booker, the district court plainly erred when it
sentenced him under a mandatory Guidelines sentencing scheme.
Because Acosta preserved his objection to the enhancement
before the district court, this court reviews the enhancement de
novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th
Cir. 2004) (en banc), cert. denied, 125 S. Ct. 932 (2005).
In 1988 Acosta was convicted of violating Cal. Health and
Safety Code § 11360(a) (West 1988). This 1988 conviction forms
the basis for the district court’s U.S.S.G. § 2L1.2(b)(1)(A)
enhancement. The language of the California Health and Safety
Code section that Acosta violated is broader than the definition
of “drug trafficking conviction” set forth in the Guidelines and
thus reaches conduct that may not fit the definition of a drug
trafficking conviction. Compare Cal. Health and Safety Code
§ 11360(a) (West 1988), with U.S.S.G. § 2L1.2(b)(1)(A)(i),
comment. (n.1(B)(iv)).
Although the probation department in the Presentence Report
(PSR) set forth facts from which the probation department
concluded that the offense was a drug trafficking offense that
warranted the enhancement, the “district court was not permitted
No. 04-50884
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to rely on the PSR’s characterization of the offense in order to
make its determination of whether it was a drug trafficking
offense.” See United States v. Garza-Lopez, 410 F.3d 268, 273-74
(5th Cir. 2005).
Additionally, under the analysis set forth in this court’s
recent decision of United States v. Gutierrez-Ramirez, 405 F.3d
352 (2005), the documents submitted by the Government do not
provide the requisite information. Neither the indictment nor
the judgment relating to Acosta’s 1988 conviction was provided to
the district court. None of the documents submitted by the
Government are the product of judicial function, such as a
judgment, that “manifests a conscious judicial narrowing of the
charging document rather than a shorthand abbreviation of the
statute of conviction.” See id. at 357-58 (internal quotation
marks omitted). The documents also are not “‘explicit factual
findings by the trial judge to which the defendant assented.’”
Id. at 359, quoting Shepard v. United States, 125 S. Ct. 1254,
1257 (2005).
At most, the documents submitted by the Government cite the
statute and state that Acosta’s crime was “sale of marijuana.”
This type of citation and shorthand reference to the statute of
conviction, which encompasses a broader range of conduct than a
drug trafficking conviction as defined in U.S.S.G.
§ 2L1.2(b)(1)(A), is insufficient to support the enhancement.
See Gutierrez-Ramirez, 405 F.3d at 355, 358-59. Finally, nothing
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in the record suggests that the documents submitted by the
Government in Acosta’s case are any more reliable than the
California abstract of judgment that in Gutierrez-Ramirez, 405
F.3d at 358, was found to have a “low level of reliability.”
Thus, the district court erred in imposing the 16-level
enhancement.
Acosta also contends that 8 U.S.C. § 1326(b)(1) and (2),
which provide that a defendant’s sentence may be increased for a
prior “felony” or “aggravated felony,” are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As Acosta
recognizes, this issue is controlled by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). This court does not have the authority to overrule
Almendarez-Torres. See Dabeit, 231 F.3d at 984. This argument
is therefore foreclosed.
Finally, because this court is vacating Acosta’s sentence
due to a misapplication of the then-mandatory Guidelines, it is
not necessary to address Acosta’a Booker claims. See Garza-
Lopez, 410 F.3d 268, 275 n.2; United States v. Southerland, 405
F.3d 263, 270 (5th Cir. 2005).
We therefore VACATE Acosta’s sentence and REMAND for
resentencing consistent with this opinion and the Supreme Court’s
opinion in Booker.