United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-41487
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE MARTINEZ-ZAMORANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-387-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Guadalupe Martinez-Zamorano (Martinez) appeals following his
guilty plea to being an alien unlawfully found in the United
States after deportation, having been previously convicted of a
felony, in violation of 8 U.S.C. § 1326. He argues that the
district court misapplied the Sentencing Guidelines by
characterizing his 2003 conviction for illegal reentry as an
aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).
Because Martinez did not raise the same argument in the
district court, review is for plain error. United States v.
*
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this opinion should not be published and is not precedent except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. 06-41487
-2-
Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). To establish
plain error, Martinez must show that (1) there is an error,
(2) that is clear or obvious, and (3) that affects his
substantial rights. See United States v. Olano, 507 U.S. 725,
731-37 (1993). If these factors are established, the decision to
correct the error is within the sound discretion of this court,
which will not be exercised unless the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
Martinez argues that his 2003 illegal reentry offense is not
an aggravated felony because he was not previously deported on
the basis of an offense described in 8 U.S.C. § 1101(a)(43) as an
aggravated felony. Although Martinez has a 1991 Texas conviction
for possession of marijuana, he argues that this offense is not
an aggravated felony and may not be used as an aggravating factor
for purposes of the 2003 illegal reentry offense. In light of
recent Supreme Court precedent, Martinez is correct. See Lopez
v. Gonzales, 127 S. Ct. 625 (2006); see also 8 U.S.C.
§ 1101(a)(43)(O); United States v. Estrada-Mendoza, 475 F.3d 258,
259-61 (5th Cir. 2007). The district court’s calculation of
Martinez’s offense level was therefore plain error. The error
resulted in imposition of a sentence greater than would otherwise
have been permitted under the Sentencing Guidelines, thereby
affecting Martinez’s substantial rights and the fairness of the
judicial proceedings. See United States v. Garza-Lopez, 410 F.3d
No. 06-41487
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268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005); United
States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). The
sentence therefore is vacated.
Martinez also raises a constitutional challenge to
§ 1326(b), which is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Martinez 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 Garza-Lopez, 410 F.3d at
276. Martinez 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. Martinez’s
conviction is therefore affirmed.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.