United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 5, 2007
Charles R. Fulbruge III
Clerk
No. 06-40087
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS CANO-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-713
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Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Jose De Jesus Cano-Lopez is appealing his conviction and 70-
month sentence of imprisonment imposed following his guilty plea
to attempting to illegally reenter the United States following
deportation. Cano-Lopez argues that the district court erred in
enhancing his offense level based on his prior Texas drug
conviction being a drug-trafficking offense within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A)(i). He contends that he was convicted
under a statute that provides that a “delivery” of drugs includes
*
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this opinion should not be published and is not precedent except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. 06-40087
-2-
an “offering to sell,” which is not included in the guidelines
definition of drug-trafficking activity.
Cano-Lopez did not make this specific argument in the
district court. Thus, review is for plain error. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc). The court has determined that a district court plainly
erred in enhancing a defendant’s offense level based on a prior
conviction under a similar Texas statute that also included an
offer to sell a controlled substance within the meaning of a
delivery. United States v. Gonzales, F.3d , No. 05-41221,
2007 WL 1063993 at *1-2 (5th Cir. Mar. 7, 2007).
The error affected Cano-Lopez’s substantial rights and the
fairness of the proceeding because, in the absence of the error,
his sentencing guidelines range would have been significantly
lower than the sentence that he received. Id. at 2007 WL 1063993
at *3. Cano-Lopez’s sentence is vacated, and the case is
remanded for resentencing.
Cano-Lopez argues, in light of Apprendi v. New Jersey, 530
U.S. 466 (2000), that the 70-month term of imprisonment imposed
in his case exceeds the statutory maximum sentence allowed for
the § 1326(a) offense charged in his indictment. He challenges
the constitutionality of § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather
than elements of the offense that must be found by a jury.
No. 06-40087
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Cano-Lopez’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 United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Cano-Lopez
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.
CONVICTION AFFIRMED, SENTENCE VACATED. REMANDED FOR
RESENTENCING.