                                                       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.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:05-CR-52-ALL
                       --------------------

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this opinion should not be published and is not precedent except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.
