United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS June 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41101
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR VASQUEZ, also known as Agustin Lara-Gomez, also known as
Omar Vasquez-Ortiz,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-2522-ALL)
_________________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Omar Vasquez appeals his guilty plea conviction and 41-months
sentence for illegally reentering the United States after having
been previously deported. Vasquez claims the district court erred
by enhancing his sentence pursuant to 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opinion should not be published and is not precedent except under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.
based upon a determination that his Texas conviction for delivery
of a controlled substance was a drug trafficking offense.
Pursuant to our decision in United States v. Gonzales, No. 05-
41221, 2007 WL 1063993, at *1 (5th Cir. 7 Mar. 2007), the district
court did err. When a district court misapplies the advisory
Guidelines, remand is appropriate unless this court concludes, “on
the record as a whole, that the error was harmless, i.e., that the
error did not affect the district court’s selection of the sentence
imposed”. United States v. Davis, 478 F.3d 266, 273 (5th Cir.
2007) (internal quotations and citations omitted). Here, any error
was harmless because the court stated that, even if it had
miscalculated the Guidelines, it would have imposed the same
sentence. See id.
Vasquez also challenges the constitutionality of 8 U.S.C.
§ 1326(b). He concedes his constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) and
raises it here only to preserve it for further review.
AFFIRMED
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