United States v. Martinez-Moreno

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-41262
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO MARTINEZ-MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-546
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Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.
PER CURIAM:*
Marco Antonio Martinez-Moreno (Martinez) appeals following
his guilty plea conviction for illegal reentry after deportation.
Martinez was sentenced to a 40-month term of imprisonment and a
three-year term of supervised release.
Martinez argues that the district court erred in increasing
his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for a
drug trafficking offense based on his prior California cocaine
conviction. The Government concedes the error and asserts that
*
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this opinion should not be published and is not precedent except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. 06-41262
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this court should vacate Martinez’s sentence and remand for
resentencing.
The documents pertaining to Martinez’s California cocaine
conviction are ambiguous as to the statute of conviction. The
charging document, which merely tracks the statutory language,
indicates that Martinez was convicted under CAL. HEALTH & SAFETY
CODE § 11352(a). Section 11352(a) encompasses acts that are not
included in the definition of a “drug trafficking offense” in the
context of U.S.S.G. § 2L1.2(b)(1)(B). See United States v.
Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005), cert.
denied, 126 S. Ct. 217 (2005). Accordingly, Martinez’s sentence
is vacated and the case is remanded for resentencing.
Martinez also challenges the constitutionality of the
treatment of prior felony and aggravated felony convictions under
8 U.S.C. § 1326(b) as sentencing factors rather than elements of
the offense that must be found by a jury. Martinez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although he 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. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126
S. Ct. 298 (2005). Martinez properly concedes that his argument
No. 06-41262
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is foreclosed in light of Almendarez-Torres and circuit
precedent, but he raises it here to preserve it for further
review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.