United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 26, 2006
IN THE UNITED STATES COURT OF APPEALS January 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10353
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN ALVAREZ GARCIA, also known as Jairo Camacho, also
known as Juan Valle Garcia, also known as Benjamin Albert
Garcia,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-150-ALL-A
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Benjamin Alvarez Garcia (Garcia) appeals from the sentence
imposed following his guilty-plea conviction for illegal entry
after having been deported, in violation of 8 U.S.C. § 1326.
Garcia contends that the district court erred when it sentenced
him based on a prior conviction for delivering cocaine, as an
*
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this opinion should not be published and is not precedent except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. 05-10353
-2-
aggravated-felony offense that warranted a 16-level offense level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i)(2004).
The record indicates that no document was provided to the
district court to support the probation department’s
characterization of Garcia’s prior drug offense as a felony that
warranted this enhancement. Thus, this court has no such
document before it in order to determine whether the district
court erred when it enhanced Garcia’s sentence. See Shepard v.
United States, 125 S. Ct. 1254, 1257 (2005); United States v.
Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126
S. Ct. 298 (2005) (citation omitted).
The only support for the enhancement is the assertions that
are set forth in the presentence report (PSR). For enhancement
purposes, a district court may not rely solely on the PSR’s
characterization of the offense. See Garza-Lopez, 410 F.3d at
274. There must be a “charging document, written plea agreement,
transcript of plea colloquy, [or an] explicit factual finding by
the trial judge to which the defendant assented.” Shepard, 125
S. Ct. at 1257. As shown by Shepard, 125 S. Ct. at 1257, 1259-
61, and Garza-Lopez, 410 F.3d at 273-75, the district court erred
when it determined that Garcia’s prior drug conviction warranted
the U.S.S.G. § 2L1.2((b)(1)(A)(I) enhancement.
Garcia also contends that the treatment of felonies and
aggravated felonies as sentencing factors under § 1326(b)(1) and
(2) is unconstitutional in light of Apprendi v. New Jersey, 530
No. 05-10353
-3-
U.S. 466 (2000), and that he should be resentenced subject to the
two-year maximum set forth in § 1326(a).
Garcia’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Garcia 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. Garcia
properly concedes that Almendarez-Torres has not been overruled.
We therefore VACATE Garcia’s sentence and REMAND for
resentencing. “On remand, the district court should order the
Government to supplement the record with documents that might
establish which elements [of the prior conviction Garcia] pleaded
guilty to.” United States v. Bonilla-Mungia, 422 F.3d 316, 321
(5th Cir. 2005). Then the district court should reconsider
whether a 16-level sentence enhancement is warranted. Id. at
322.
VACATED AND REMANDED.