                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 3, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-20634
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FEDERICO CASTANEDA DE LA HOZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:05-CR-23-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     On March 15, 2005, Federico Castaneda de la Hoz (Castaneda)

pleaded guilty to possession with intent to distribute 100 grams

or more of heroin and importation of 100 grams or more of heroin.

21 U.S.C. § 841, 952, 960.   The district court sentenced

Castaneda to 78 months of imprisonment, to be followed by five

years of supervised release, and ordered Castaneda to pay $200 in

special assessments.

     Castaneda argues that the district court erred in

considering the drugs involved in his 2003 drug smuggling in

     *
       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this opinion should not be published and is not precedent except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. 05-20634
                                  -2-

calculating his base offense level.    Specifically, Castaneda

argues that his drug smuggling in 2003 conduct was too remote in

time and different from his 2004 offense to be relevant conduct

under the Guidelines and that there was insufficient evidence to

support the inference that his drug smuggling in 2003 involved

heroin rather than cocaine.

     Under the common scheme approach to relevant conduct,

Castaneda’s conduct in 2003 was properly included in the offense

level calculation because the modus operandi of each trip was

substantially similar, and the two trips involved common

accomplices.     See U.S.S.G. § 1B1.3(a)(2); id., comment. (n.9(A)).

Notwithstanding the time interval between the trips, the

similarities between them makes the district court’s finding that

the drug smuggling in 2003 was relevant conduct under the

Guidelines “plausible in light of the record as a whole.”     See

United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).

     On the other hand, the Government had the burden of proving

by a preponderance of the evidence the facts necessary to support

the two level adjustment in Castaneda’s offense level, and “there

must be an acceptable evidentiary basis for the court’s

factfindings at the sentencing hearing.”    United States v. Ayala,

47 F.3d 688, 690 (5th Cir. 1995); see also United States v.

Mares, 402 F.3d 511, 518 (5th Cir.) (same), cert. denied, 126 S.

Ct. 43 (2005).    By treating the 35 pellets Castaneda smuggled in

2003 as containing heroin, Castaneda’s offense level was two
                            No. 05-20634
                                 -3-

levels higher than it would have been had the district court

treated them as containing cocaine.   See U.S.S.G. § 2D1.1(c)

(Drug Equivalency Table).   Because the Government failed to prove

by a preponderance of the evidence that the drug pellets

Castaneda smuggled in 2003 contained heroin rather than cocaine,

the district court erred in so finding.    Nevertheless, Castaneda

concedes that he should be held accountable for at least 350

grams of cocaine, and upon remand the district court should

recalculate his base offense level by treating the 2003 smuggling

trip as involving 350 grams of cocaine rather than heroin.

     Castaneda also challenges the statutes under which he was

convicted, arguing that 21 U.S.C. §§ 841, 952, and 960 are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   In United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2000), this court rejected the argument that Apprendi

rendered § 841 facially unconstitutional.      238 F.3d at 582.

Castaneda’s challenge to the constitutionality of §§ 952 and 960

on the same grounds also lacks merit in light of the holding in

Slaughter.   See Slaughter, 238 F.3d at 582.    Castaneda concedes

that his attack on the constitutionality of §§ 841, 952, and 960

is meritless in light of circuit precedent, but he raises the

argument to preserve it for further review.

     For the foregoing reasons, vacate Castaneda’s sentence and

remand for resentencing.
                          No. 05-20634
                               -4-

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.
