United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT
April 4, 2007
Charles R. Fulbruge III
No. 06-40841 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALGER EDUARDO FRAGOSA-ALANIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(1:06-CR-19-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alger Eduardo Fragosa-Alaniz (Fragosa-
Alaniz) appeals his conviction and sentence for illegal reentry.
Fragosa-Alaniz’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Fragosa-Alaniz 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
*
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this opinion should not be published and is not precedent except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.
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). Fragosa-Alaniz 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.
The district court, however, erred in enhancing Fragosa-
Alaniz’s sentence pursuant to U.S.S.G. § 2L1.2(b(1)(C) by
determining that his state conviction for simple possession of a
controlled substance was an “aggravated felony.” See United States
v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir. 2007). We
therefore vacate Fragosa-Alaniz’s sentence and remand his case for
resentencing. See id.
We grant Fragosa-Alaniz’s unopposed motion to (1) withdraw his
argument that the district court erred in assessing four criminal
history points for two prior convictions, (2) affirm his
conviction, and (3) vacate and remand his sentence.
MOTION GRANTED; AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
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