United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-40427
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO SANCHEZ-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-2093-ALL
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Gilberto Sanchez-Lopez appeals his guilty-plea conviction of,
and sentence for, violating 8 U.S.C. § 1326 by being found in the
United States without permission after deportation. He challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors
*
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this opinion should not be published and is not precedent except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.
rather than elements of the offense that must be found by a jury in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Sanchez-
Lopez’s constitutional challenge is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (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 United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Sanchez-Lopez 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.
Sanchez-Lopez also argues that the district court erred in im-
posing his sentence when it classified his state conviction as a
drug trafficking offense that warranted a 12-level enhancement un-
der U.S.S.G. § 2L1.2(b)(1)(B). Sanchez-Lopez is correct. North
Carolina General Statute § 90-95, the state statute under which
Sanchez-Lopez was convicted, is worded so that some, but not all,
violations of the statute constitute a drug trafficking offense
consistent with the guidelines definition. The offense for which
Sanchez-Lopez was convicted, attempted conspiracy to traffic mari-
huana by possession, is not a “drug trafficking offense” as that
term is defined for purposes of § 2L1.2(b)(1)(B). See Garza-Lopez,
410 F.3d at 273-74; United States v. Gutierrez-Ramirez, 405 F.3d
352, 352-60, cert. denied, 126 S. Ct. 217 (2005); United States v.
Rodriguez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003); see also
United States v. Meabe-Morales, 165 F. App'x 347, 349 (5th Cir.
2006).
We accordingly VACATE Sanchez-Lopez’s sentence and REMAND for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.