United States v. Morales-Garcia , 140 F. App'x 546 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-20887
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO MORALES-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-252-ALL
Before JONES, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Alberto Morales-Garcia pleaded guilty to being found in
the United States following deportation in violation of 8 U.S.C.
§ 1326(a), (b)(1) and (b)(2). Because Morales-Garcia had been
deported subsequent to a conviction for a drug trafficking offense,
his offense level was enhanced by sixteen levels under the then
mandatory Sentencing Guidelines. Morales-Garcia’s argument that
the treatment of prior convictions as sentencing factors rather
than offense elements under 18 U.S.C. § 1326(b)(1), (b)(2) is
*
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opinion should not be published and is not precedent except under the limited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.
unconstitutional is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998).
Morales-Garcia contends and the Government concedes that
the district court plainly erred in enhancing his offense level by
sixteen levels because he had not been convicted of a felony drug-
trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(I). Simple
possession of a controlled substance does not qualify as a drug-
trafficking offense for purposes of the enhancement. United States
v. Caicedo-Cuero, 312 F.3d 697, 707 (5th Cir. 2002). Because the
imposition of a sentence based on the unsupported enhancement is
plain error that affected Morales-Garcia’s substantial rights, the
sentence imposed by the district court is VACATED, and the matter
is REMANDED to the district court for resentencing. See United
States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002).
Morales-Garcia also argues that he should be resentenced
because the district court erred in sentencing him under a
mandatory guidelines scheme invalidated by United States v. Booker,
125 S. Ct. 738 (2005). Given that Morales-Garcia’s sentence has
been vacated, it is not necessary to address the Booker issue. See
United States v. Southerland, 405 F.3d 263, 270 (5th Cir. 2005).
SENTENCE VACATED and REMANDED FOR RESENTENCING.
2