United States v. Aguilar-Uriostigue , 237 F. App'x 938 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2007
Charles R. Fulbruge III
Clerk
No. 05-11186
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO AGUILAR-URIOSTIGUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-52-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges,
PER CURIAM:*
Pedro Aguilar-Uriostigue appeals the sentence imposed
following his guilty-plea conviction for illegal reentry after
removal from the United States in violation of 8 U.S.C. § 1326.
He argues that the district court erred in treating his prior
Texas conviction for unlawful delivery of a controlled substance
as a “drug trafficking offense” for the purpose of a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). Because Aguilar-
Uriostigue did not object to this adjustment below, we review the
district court’s determination for plain error only. See United
*
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this opinion should not be published and is not precedent except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. 05-11186
-2-
States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005), cert.
denied, 126 S. Ct. 298 (2005).
As the Texas statute and Aguilar-Uriostigue’s state
indictment indicate that he may have been convicted for activity
that does not constitute a drug-trafficking offense under
§ 2L1.2, the district court plainly erred by applying
§ 2L1.2(b)(1)(A)(i) on this basis. See United States v.
Gonzales, 484 F.3d 712, 716 (5th Cir. 2007). Absent the 16-level
adjustment under § 2L1.2(b)(1)(A)(i), the applicable guideline
range of imprisonment would have been significantly lower than
the imposed sentence, even if an 8-level adjustment under
§ 2L1.2(b)(1)(C) had been applied. This error therefore affected
Aguilar-Uriostigue’s substantial rights. See id. Moreover, this
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. See id. Aguilar-
Uriostigue’s sentence must therefore be vacated on this basis,
and the case remanded for re-sentencing.
Aguilar-Uriostigue also challenges the constitutionality of
§ 1326(b)’s treatment of prior felony convictions as sentencing
factors rather than elements of the offense that must be found by
a jury. As Aguilar-Uriostigue concedes, his constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), see Garza-Lopez, 410 F.3d at 276, but
he raises it here to preserve it for further review.
SENTENCE VACATED; CASE REMANDED FOR RE-SENTENCING.