United States Court of Appeals
Fifth Circuit
F I L E D
June 14, 2007
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-40577
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO GRANDE-DORANTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(1:05-CR-1046-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pedro Grande-Dorantes appeals, on two bases, his sentence
following a guilty-plea conviction for illegal reentry following
deportation.
First, he contends the district court erred by enhancing his
sentence pursuant to advisory Guidelines § 2L1.2(b)(1)(B), based on
the court’s finding he was previously deported after a conviction
for a felony drug-trafficking offense. Grande-Dorantes contends
*
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this opinion should not be published and is not precedent except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.
his prior Texas conviction for possession with intent to deliver
cocaine is not a drug-trafficking offense under § 2L1.2(b)(1)(B)
because Texas Health and Safety Code § 481.112(a) defines a
“delivery” to include an “offer to sell,” which is not punishable
under the Controlled Substances Act.
Because Grande-Dorantes challenged this sentencing enhancement
in the district court, we review the district court’s application
of the advisory Guidelines de novo; its factual findings for clear
error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005); United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005).
At sentencing, the Government submitted state-court records
establishing that Grande-Dorantes stipulated to possessing cocaine
with the intent to distribute it. Because Grande-Dorantes
stipulated to conduct which constitutes a drug-trafficking offense
under § 2L1.2, the district court did not err in enhancing his
sentence. Shepard v. United States, 544 U.S. 13, 16 (2005); United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005).
Grande-Dorantes also asserts that the felony and aggravated
felony provisions of 8 U.S.C. § 1326(b) are unconstitutional in the
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
subsequent Supreme Court decisions. This constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
2
235 (1998). Grande-Dorantes properly concedes this; he raises the
issue here to preserve it for further review.
AFFIRMED
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