United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-11415
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL REYES-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:05-CR-31-1
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rafael Reyes-Morales appeals from his guilty-plea conviction
and sentence for illegal reentry after deportation. For the
first time on appeal, he argues that the district court erred by
assessing separate criminal history points for his prior
sentences for sexual assault of a child and possession of a
controlled substance. As the Government concedes, those two
sentences are related for purposes of U.S.S.G. § 4A1.2(a)(2)
because they occurred on the same occasion. See United States v.
Moreno-Arredondo, 255 F.3d 198, 205 (5th Cir. 2001); United
*
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this opinion should not be published and is not precedent except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. 05-11415
-2-
States v. Johnson, 961 F.2d 1188, 1189 (5th Cir. 1992). Because
the correct advisory guideline range is less than the sentence
imposed, we vacate Reyes-Morales’s sentence and remand for
resentencing consistent with this opinion. See United States v.
Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005).
Reyes-Morales’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Reyes-Morales 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 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). Reyes-Morales 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.
Accordingly, we AFFIRM Reyes-Morales’s conviction, but we
VACATE his sentence and REMAND for resentencing.