United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2007
Charles R. Fulbruge III
Clerk
No. 05-41491
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON BARRERA-CASTRO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(7:05-CR-405-ALL)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ramon Barrera-Castro appeals his
conviction and sentence for attempting to enter the United States
after deportation in violation of 8 U.S.C. § 1326(a) & (b). He
contends that the district court plainly erred in increasing his
offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1999
and 2002 Texas convictions for possession with intent to deliver a
controlled substance, arguing that his prior offenses do not
constitute drug trafficking offenses. As Barrera-Castro did not
raise this issue in the district court, our review is limited 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this opinion should not be published and is not precedent except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.
plain error. See United States v. Green, 324 F.3d 375, 381 (5th
Cir. 2003). Barrera-Castro has two prior Texas convictions for
possession with intent to deliver cocaine in violation TEX. HEALTH
& SAFETY CODE ANN. § 481.112(a)(Vernon 1993), which defines “deliver”
in relevant part to include “offering to sell a controlled
substance, counterfeit substance, or drug paraphernalia.” The
indictments and the judgments concerning these prior Texas
convictions do not provide the specific means of commission of the
offenses, and Barrera-Castro has not admitted such facts. The
district court plainly erred in increasing Barrera-Castro’s offense
level relying solely on the factual narrative in the Presentence
Report. See United States v. Gonzales, __ F.3d __, No. 05-41221,
2007 WL 1063993 at **2-3 (5th Cir. Mar. 7, 2007); see also United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). The error affected Barrera-Castro’s
substantial rights because, without the 16-level enhancement, his
guidelines sentencing range would have been 37-46 months, much less
than his 63-month sentence. See Gonzales, 2007 WL 1063993 at * 2.
As the error clearly affected Barrera-Castro’s sentence, the error
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. See id. at *3. Accordingly, Barrera-
Castro’s sentence is vacated, and the case is remanded for
resentencing in accordance with Gonzales.
Barrera-Castro also challenges the constitutionality of
§ 1326(b)’s treatment of prior felony and aggravated felony
2
convictions as sentencing factors 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). Barrera-Castro’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 Garza-Lopez, 410 F.3d at
276. Barrera-Castro 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. Barrera-
Castro’s conviction is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
3