United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-41464
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO REYNA PULIDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-96
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Alfredo Reyna Pulido appeals his guilty-plea conviction and
30-month sentence for illegal reentry, in violation of 8 U.S.C.
§ 1326. His constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Reyna Pulido 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.
*
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this opinion should not be published and is not precedent except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. 06-41464
-2-
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005). Reyna Pulido 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.
Reyna Pulido additionally argues, for the first time on
appeal, that the district court misapplied the Sentencing
Guidelines by characterizing his state felony conviction for
possession of a controlled substance as an “aggravated felony”
for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Given the Supreme
Court’s recent decision in Lopez v. Gonzales, 127 S. Ct. 625
(2006), Reyna Pulido is correct. See United States v. Estrada-
Mendoza, 475 F.3d 258, 259-61 (5th Cir.), cert. denied, 127 S.
Ct. 1845 (2007). His conviction is affirmed. His sentence is
vacated, and the case is remanded for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.