United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-40603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL PEREZ-GUILLEN, also known as Jesus Bonilla,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2357-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Daniel Perez-Guillen (Perez) appeals his 57-month sentence
for illegal reentry into the United States following deportation,
in violation of 8 U.S.C. § 1326(a) and (b). Perez argues that
the district court erred by applying a 16-level enhancement to
his sentence because his 1994 conviction of delivery of a
controlled substance did not qualify as a “drug trafficking
offense” under § 2L1.2(b)(1)(A)(i). He contends that the statute
under which he was convicted, TEX. HEALTH AND SAFETY CODE § 481.112
(Vernon 1993), punished an offer to sell a controlled substance,
*
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this opinion should not be published and is not precedent except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. 06-40603
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conduct beyond the ambit of § 2L1.2’s definition of a “drug
trafficking offense.” He asserts that the state-court documents
presented in support of the enhancement failed to show that he
had pleaded guilty to delivery of a controlled substance by
actual or constructive transfer, rather than by offering to sell
a controlled substance. Perez concludes that, absent specifics
as to his plea, the Government had failed to prove that his prior
conviction was a “drug trafficking offense” that merited a
16-level enhancement.
At the time Perez was charged, § 481.112(a) provided that:
“a person commits an offense if the person knowingly or
intentionally manufactures, delivers, or possesses with intent to
manufacture or deliver a controlled substance listed in Penalty
Group 1.” “Deliver” was defined to include the “transfer,
actually or constructively, to another a controlled substance,
counterfeit substance, or drug paraphernalia” and “offering to
sell a controlled substance, counterfeit substance, or drug
paraphernalia.” § 481.002(8). Perez’s indictment charged him
with delivery of a controlled substance by actual transfer,
constructive transfer, and offering to sell. As Perez points
out, the contents of his indictment are not dispositive because,
under Texas law, the State may “plead alternative ‘manner or
means’ in the conjunctive when proof of any one ‘manner or means’
will support a guilty verdict.” Johnson v. State, 187 S.W.3d
591, 604 (Tex. App. 2006). Perez’s judgment reflected only that
No. 06-40603
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Perez had pleaded guilty to the delivery of a controlled
substance, without specifying the means by which he committed the
offense. Consequently, the district court could not properly
have relied on the language of § 481.112, Perez’s indictment, or
his judgment to determine that Perez had committed a “drug
trafficking offense” as they are overbroad. See United States v.
Garza-Lopez, 410 F.3d 268, 274-75 (5th Cir.), cert. denied, 126
S. Ct. 298 (2005). The record does not include a transcript of
the guilty plea hearing or any other appropriate documentary
evidence that would establish whether Perez admitted to actually
or constructively transferring a controlled substance, rather
than merely offering to sell a controlled substance. See Shepard
v. United States, 544 U.S. 13, 16 (2005). Accordingly, the
district court erred by applying a 16-level enhancement to
Perez’s sentence. See United States v. Gonzales, F.3d ,
No. 05-41221, 2007 WL 1063993 at **1-2 (5th Cir. Mar. 7, 2007).
The Government does not contend that the error was harmless. See
United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
Accordingly, Perez’s sentence is vacated and remanded for
resentencing.
Perez appeals his guilty-plea conviction of, and sentence
for, violating 8 U.S.C. § 1326 by being found in the United
States without permission after deportation. He argues, in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 57-month
term of imprisonment imposed in his case exceeds the statutory
No. 06-40603
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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.
Perez’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. Perez
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.