United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-10805
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JESUS TERRONES-LOPEZ, also known as Jose Jesus
Terrones-Vasquez,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:06-CR-55)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Jesus Terrones-Lopez appeals his sentence for illegal
reentry after having been deported, in violation of 8 U.S.C. §
1326(a) and (b). He was sentenced to 50 months in prison.
Terrones contends the district court erred by increasing his
base offense level under the advisory Guidelines by 16 levels,
having found that his Texas conviction of delivery of cocaine was
a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i).
*
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this opinion should not be published and is not precedent except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.
Because Terrones preserved this issue in district court, we review
it de novo. See United States v. Villegas, 404 F.3d 355, 359 (5th
Cir. 2005).
The indictment from Terrones’ prior conviction, the only
document introduced at sentencing in support of the 16-level
increase, stated he “did unlawfully, knowingly and intentionally
deliver, to-wit: actually transfer, constructively transfer, and
offer to sell a controlled substance”. Despite the pleading’s
conjunctive language, the statute is disjunctive, and the jury
could have convicted Terrones based only on an offer to sell.
United States v. Gonzales, No. 05-41221, 2007 WL 1063993, at *2
(5th Cir. 7 Mar. 2007). Offering to sell a controlled substance,
however, is not a drug trafficking offense under § 2L1.2. Id. at
*1; United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Accordingly, resentencing is
required. See Gonzalez, 2007 WL 1063993, at *2.
Terrones also challenges the constitutionality of the
treatment of prior felony and aggravated felony convictions under
8 U.S.C. § 1326(b) as sentencing factors rather than elements of
the offense that must be found by a jury. Terrones’ constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Terrones properly concedes this; he raises
the issue only to preserve it for further review.
2
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING
3