United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-41065
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MANUEL GRADILLA-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-214-ALL
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Before KING, WIENER, and DeMOSS, Circuit Judges
PER CURIAM:*
Jorge Manuel Gradilla-Gonzalez (Gradilla) appeals his
conviction and sentence for illegal reentry. Gradilla challenges
the constitutionality of 8 U.S.C. § 1326(b)(1), (2). That issue,
however, is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Gradilla contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
*
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this opinion should not be published and is not precedent except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. 05-41065
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rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gradilla
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. His conviction is therefore
affirmed.
Gradilla additionally argues for the first time on appeal
that the district court plainly erred when it imposed an eight-
level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2004).
He contends that the district court erroneously classified his
state drug conviction as an “aggravated felony,” arguing that the
text of the statute of conviction, CAL. HEALTH & SAFETY CODE
§ 11352(a), is so broad that it covers offenses that are not
punishable under the Controlled Substances Act.
To classify a prior conviction for purposes of § 2L1.2, a
court may look to both the statutory definition of the offense,
as well as the charging document, any written plea agreement,
transcript of the plea colloquy, and explicit finding admitted by
the defendant. See United States v. Bonilla-Mungia, 422 F.3d
316, 320 (5th Cir. 2005); United States v. Gutierrez-Ramirez, 405
F.3d 352, 359 (5th Cir.), cert. denied, 126 S. Ct. 217 (2005).
Although Gradilla suggests that there are no state pleadings that
could have been introduced into evidence, he purported to quote
his indictment in his objections to the original presentence
No. 05-41065
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report. The indictment, however, was never made part of the
record. Consequently, we cannot, on the record before us,
resolve the issue raised with legal certainty. See id. at 321.
Gradilla’s sentence is therefore vacated and the case
remanded to the district court. On remand, the district court
should order that the record be supplemented with the charging
document and any other documents that might establish the
elements to which Gradilla pleaded nolo contendere. Once the
record has been supplemented, the district court should
reconsider whether an eight-level enhancement for an aggravated
felony is warranted.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.