United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 9, 2007
Charles R. Fulbruge III
Clerk
No. 05-41767
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECILIO BUSTAMANTE-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1364
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Cecilio Bustamante-Castillo appeals his guilty-plea
conviction and sentence for illegal reentry after deportation.
Bustamante-Castillo received a sentence of 32 months of
imprisonment, which included an enhancement based on 8 U.S.C.
§ 1326(b)(2) because his previous deportation occurred following
an aggravated felony conviction.
Bustamante-Castillo asserts that his conviction and sentence
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
*
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that this opinion should not be published and is not precedent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. 05-41767
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466 (2000), because 1) § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
offense elements is unconstitutional and 2) neither his
indictment nor plea colloquy indicated that his previous
deportation had occurred following an aggravated felony
conviction.
Bustamante-Castillo’s 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 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). Bustamante-Castillo 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.
Bustamante-Castillo also contends that his sentence should
be vacated because the district court committed reversible plain
error by assessing three criminal history points under U.S.S.G.
§ 4A1.1(a) and (b) for his 1996 possession of marijuana
conviction, which carried a 12-month sentence. Because
Bustamante-Castillo did not raise this issue in the district
court, we review it for plain error. See United States v.
No. 05-41767
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Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006), cert. denied,
126 S. Ct. 2309 (2006). Under the plain-error standard of
review, “reversal is not required unless there is (1) an error;
(2) that is clear or plain; (3) that affects the defendant’s
substantial rights; and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
According to the Sentencing Guidelines, three criminal
history points are assigned for each prior sentence of
imprisonment exceeding 13 months, and two criminal history points
are assigned for each prior sentence of imprisonment that is at
least 60 days but 13 months or less. See U.S.S.G. § 4A1.1(a),
(b). Because Bustamante-Castillo’s 1996 marijuana possession
conviction carried a 12-month sentence, it should have been
assigned only two criminal history points. See id.
The assignment of three criminal history points in this
instance was erroneous, plainly contrary to the provisions of
§ 4A1.1(a) and (b), and detrimental to Bustamante-Castillo’s
substantial rights in that it incorrectly inflated his sentencing
guidelines range. “Generally, when a trial court incorrectly
applies the United States Sentencing Guidelines, as it did here,
the fairness, integrity, or public reputation of judicial
proceedings is seriously affected.” United States v. Alarcon,
261 F.3d 416, 424 (5th Cir. 2001). Accordingly, this error
No. 05-41767
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requires that Bustamante-Castillo’s sentence be vacated and his
case remanded for resentencing in accordance with this opinion.
Because vacating and remanding Bustamante-Castillo’s
sentence is necessary based on this error alone, we do not reach
Bustamante-Castillo’s remaining sentencing issues. See United
States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
Bustamante-Castillo’s motion to summarily affirm the judgment in
part, vacate the judgment in part, and remand for resentencing is
denied as unnecessary.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED; MOTION
DENIED AS UNNECESSARY.