United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2006
Charles R. Fulbruge III
Clerk
No. 05-50500
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY GERARDO CASTRO-PADILLA,
also known as Carlos Gerardo Alvarado-Rivera,
also known as Carlos Gerardo,
also known as Alex Montenegro,
also known as Carlos Gerardo Alvarado,
also known as Johnny Castro-Padilla,
also known as Joni Gerardo Castro
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-582-1
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Johnny Gerardo Castro-Padilla appeals his sentence imposed
following his guilty plea conviction to being found illegally in
the United States following deportation. Castro was sentenced to
*
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this opinion should not be published and is not precedent except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. 05-50500
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63 months of imprisonment and a three-year term of supervised
release.
Castro argues that the district court plainly erred in
increasing his offense level pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A) for a drug trafficking offense based on his
prior conviction for a California drug offense. The Government
concedes in a motion to vacate the sentence and remand for
resentencing that the statute under which Castro was convicted
could be violated by conduct that did not include a drug
trafficking offense within the meaning of the Guidelines.
Because Cal. Health & Safety Code § 11352(a) encompasses
acts that are not included in the definition of a “drug
trafficking offense” in the context of § 2L1.2(b)(1), the
district court committed plain error in enhancing Castro’s
offense level based on the California offense. See United States
v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005), cert.
denied, 126 S. Ct. 217 (2005). Castro’s sentence is vacated and
the case is remanded for resentencing.
The Government in its motion seeks permission to supplement
the record at resentencing with documents to support the
enhancement. The Government admits that Castro’s indictment
merely tracked the language of the statue and does not establish
that the offense was a “drug trafficking offense” under the
Guidelines. The district court should allow the Government to
supplement the record with only those documents authorized under
No. 05-50500
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the categorical approach sanctioned by United States v. Shepard,
544 U.S. 13, 125 S. Ct. 1254, 1257 (2005) to determine whether
Castro’s prior conviction was a drug trafficking offense within
the meaning of § 2L1.2(b)(1)(A). See United States v. Bonilla-
Mungia, 422 F.3d 316, 320 (5th Cir. 2005); Gutierrez-Ramirez, 405
F.3d at 358-59. Thus, the Government’s motion for permission to
supplement the record at resentencing is granted.
Castro argues that his sentence of imprisonment and
supervised release exceeds the statutory maximum for the charged
offense and that his sentence should be reduced to a maximum of
two years of imprisonment and one year of supervised release
pursuant to 8 U.S.C. § 1326(a). He argues that the holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000) cast doubt on the
validity of the decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998) that a prior conviction is a sentencing
factor and not an element of the offense.
Castro’s constitutional challenge is foreclosed by
Almendarez-Torres. Although Castro 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). Castro properly concedes that his argument is
No. 05-50500
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foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
AFFIRM CONVICTION; VACATE SENTENCE; REMAND FOR RESENTENCING;
GRANT MOTION TO SUPPLEMENT THE RECORD.