                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                         July 20, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                  No. 05-41443


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

MARCELO CASTANEDA-BALTAZAR,

                                           Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 5:05-CR-792
                         --------------------

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Defendant Marcelo Castaneda-Baltazar plead guilty to illegal

reentry.    In sentencing Castaneda, the district court added twelve

levels under U.S.S.G. § 2L1.2(b)(1)(B), which mandates enhancement

when the defendant was previously convicted of a felony “drug

trafficking offense” for which the sentence was thirteen months or

less.      The    court   based   the   enhancement   on   Castaneda’s      1995

California       state    conviction    for,   as   alleged   in    the    state

indictment, “Transport/Sell/Offer to Sell Marijuana (Felony),” in

violation of CAL. HEALTH & SAFETY CODE § 11360(a) (1995), for which he



     *
        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opinion should not be published and is not precedent except under the limited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. 05-41443
                                         -2-

received probation.1             Castaneda challenges the enhancement on

appeal.

       Castaneda concedes that we should review for plain error

because his counsel never objected to the enhancement below.

Unsatisfied        with   this    concession,   the    Government    urges   that

Castaneda waived - not just forfeited - the argument, precluding us

from considering it.         See United States v. Arviso-Mata, 442 F.3d

382, 384 (5th Cir. 2006) (discussing difference between waiver and

forfeiture).        This, the Government asserts, because at sentencing

Castenda’s counsel told the district court that she “under[stood]

that the guideline score is correct.             It does call for a twelve-

level       enhancement.”        Waiver,    however,    is   the    “intentional

relinquishment or abandonment of a known right,” United States v.

Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304

U.S.       458,   464   (1938)),    and   Castaneda    did   not   intentionally

relinquish a known right here.             Indeed, given that counsel failed

to object below on the basis raised on appeal, presumably because

she did not recognize the argument, she had no choice but to

concede to the district court in the words used that the Guidelines

calculation was correct.           This court came to the same conclusion in

Arviso-Mata, 442 F.3d at 384, a case presenting almost identical



       1
        CAL. HEALTH & SAFETY CODE § 11360(a) states: “Except as otherwise provided
by this section or as authorized by law, every person who transports, imports
into this state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give away, or
attempts to import into this state or transport any marijuana shall be
punished by imprisonment in the state prison for a period of two, three or
four years.”
                               No. 05-41443
                                    -3-

facts in which the court declined to find waiver because there was

“no evidence...that counsel knew of the sentencing guidelines issue

and...consciously chose to forego it.”2          And we recently applied

Arviso-Mata to another case just like the present one.            See United

States v. Duque-Hernandez, 2007 WL 1017046 (5th Cir. Mar. 29, 2007)

(unpub.).    Castaneda did not waive this argument.

     To establish plain error, Casteneda must show: “(1) there was

an error; (2) the error was clear and obvious; and (3) the error

affected    [his]   substantial   rights.      When   these    elements   are

present, [this Court] may exercise [its] discretion to correct the

error only if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”             United States v.

Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).              The Government

argues first that we cannot analyze whether there was error here

because Castaneda has never produced the California indictment,

judgment of conviction, or anything else showing of what he was

actually convicted in state court. Castaneda responds that the PSR

makes clear of what crime he was convicted, and in any event this

court has repeatedly remanded for the district court to obtain and

review the relevant documents, even in cases of plain error review,

as the Government concedes.       See United States v. Bonilla-Mungia,

422 F.3d 316, 321-22 (5th Cir. 2005); United States v. Gonzalez-


      2
        The court noted that the two cases cited by the Government involved
situations where objections were made, then withdrawn. In such situations, of
course, the defendant is plainly aware of the relevant argument or claim. See
also United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) (holding
similarly to Arviso-Mata); United States v. Jimenez, 258 F.3d 1120 (9th Cir.
2001) (same).
                               No. 05-41443
                                    -4-

Chavez, 432 F.3d 334, 338-39 (5th Cir. 2005).             We need not worry

(or remand), however, because we granted Castaneda’s unopposed

motion to   supplement   the    record   on   appeal     with   the   relevant

documents, submitted after the Government filed its brief, so we

now have everything we need to dispose of this appeal.

     Castanenda argues there was error because his statute of

conviction encompasses acts not included in the definition of “drug

trafficking offense,” in violation of the categorical approach, see

United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19 (5th

Cir. 2003).    Namely,   he    argues,   §    11360(a)    encompasses    mere

transportation of drugs and offering to sell drugs, acts not

considered “drug trafficking offense[s],” see United States v.

Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005), and his indictment

and statute of conviction leave open the possibility that he was

convicted for offering to sell.     Indeed, he notes, we have recently

held as much in two cases involving CAL. HEALTH & SAFETY CODE §

11352(a), a statute in relevant part identical to § 11360(a) but

substituting various other drugs for “marijuana,” see United States

v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005); United States

v. Gonzalez-Borjas, 125 Fed. App’x 556 (5th Cir. 2005) (unpub.),

and in a recent unpublished opinion we held the same regarding the

actual statute as issue here, United States v. Acosta-Avitia, 145

Fed. App’x 70 (5th Cir. 2003).     The Government offers no persuasive

rejoinder, focusing instead on Castaneda’s forfeiture or supposed
                               No. 05-41443
                                    -5-

waiver, which is irrelevant to whether there was error.3                  It is

clear there was error here, and the error was plain.

     Castaneda     continues    that     the   plain     error    affects   his

substantial rights and seriously affects the fairness, integrity,

and public reputation of the judicial proceedings because, without

the enhancement here, his Guidelines range would have been, at a

maximum,4   fifteen    to   twenty-one    months,      and   he   was   actually

sentenced to twenty-seven months, the bottom of the erroneous

twenty-seven to thirty-three month range.           He correctly notes that

we have consistently found reversible plain error in similar

situations.    See Gracia-Cantu, 302 F.3d at 313; United States v.

Alarcon, 261 F.3d 416, 423-24 (5th Cir. 2001); United States v.

Aderholt, 87 F.3d 740, 744 (5th Cir. 1996); United States v. Green,

46 F.3d 461, 467 (5th Cir. 1995); United States v. Franks, 46 F.3d


     3
        There is a rejoinder to this argument that the Government has made
before. See United States v. Vargas-Vargas, 2007 WL 1493901 (5th Cir. May 22,
2007) (unpub.) (mooting the case, but the Government made the argument in its
brief). Namely, that a defendant who pleads guilty to a conjunctive
indictment, even if the crime can be established disjunctively at trial,
admits guilt to each method of committing the crime and, therefore, admits to
the elements establishing the categorical crime providing for enhancement.
See United States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995) (holding that
when a defendant pleads guilty to facts stated in the conjunctive, he admits
each allegation as true); United States v. Still, 102 F.3d 118, 124-25 (5th
Cir. 1996) (holding that guilty plea to using and carrying firearm was
admission of both); but see Omari v. Gonzales, 419 F.3d 303, 308 n.10 (5th
Cir. 2005) (holding that guilty plea to crime charged conjunctively but
provable disjunctively did not mean admission to guilt of both). Further, the
argument continues, the law here is at a minimum unclear, so surely there is
no “plain” error. The Government in this case, however, does not make this
argument.
     4
        On re-sentencing, the prior conviction might be an “aggravated felony”
under § 2L1.2(b)(1)(C), yielding an eight-level enhancement, or just an “any
other felony” under § 2L1.2(b)(1)(D), yielding a four-level enhancement.
Castaneda does not concede that the prior conviction was an “aggravated
felony,” and we do not decide the issue. See Gonzalez-Borjas, 125 Fed. App’x
at 560 (declining to decide the issue, leaving it to the district court on re-
sentencing).
                            No. 05-41443
                                 -6-

402, 404-05 (5th Cir. 1995).      Indeed, in Gonzalez-Borjas, this

court corrected the error where the erroneous range was forty-six

to fifty-seven months, the defendant was sentenced at the bottom,

and the corrected range would have been, at most, thirty-three to

forty-one months.   125 Fed. App’x at 559.   The Government makes no

response to this prong of plain error review.   We conclude that the

error here affected Castaneda’s substantial rights and seriously

affected the fairness, integrity, and public reputation of the

judicial proceedings.    Hence we must vacate and remand.

     Castaneda also challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors.     He makes two claims: that the statute is

unconstitutional as applied to him because his prior conviction

wasn’t alleged in his federal indictment and he never admitted its

existence   in   pleading    guilty,   and   that   §   1326(b)   is

unconstitutional on its face because it can never be applied

constitutionally.     As he properly concedes, both arguments are

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), and he raises the arguments only to preserve them.

     SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.
