                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                            March 8, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-41521
                              Summary Calendar


                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                         JAIME SANCHEZ-NAVARRO,

                                                      Defendant-Appellant.



           Appeal from the United States District Court
                for the Southern District of Texas
                         (7:04-CR-543-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Jaime Sanchez-Navarro appeals from his guilty-plea conviction

and   sentence    for   illegal   reentry      following   deportation,       in

violation of 8 U.S.C. § 1326.

      For the first time on appeal, Sanchez asserts the district

court erred in categorizing his previous Iowa-state convictions for

tampering with records and failure to appear as aggravated felonies

under Sentencing Guidelines § 2L1.2(b)(1)(C) (defendant previously

deported   or    unlawfully    remained   in    the   United   States     after


      *
       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this opinion should not be published and is not precedent except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.
conviction of an aggravated felony), resulting in an eight-level

increase in his offense level.          He contends his offense level

should have been increased instead by four levels under Sentencing

Guidelines   §   2L1.2(b)(1)(D)   (defendant    previously   deported   or

unlawfully remained in the United States after conviction of any

non-enumerated felony).     The Government concedes this error and

seeks remand for resentencing.

     Because the issue was not preserved in district court, our

review is only for plain error.         See United States v. Olano, 507

U.S. 725, 732 (1993).      Under that standard, Sanchez bears the

burden of showing there is a “clear” or “obvious” error that

affected his substantial rights.        Id.   If he is able to do so, we

have discretion to correct the error if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings”.

Id. (internal citations and quotation marks omitted) (alteration in

original).

     Based on our review of the Iowa statutes and the charging

documents, we agree with the parties that neither of Sanchez’s Iowa

convictions was an aggravated felony under Sentencing Guidelines §

2L1.2(b)(1)(C).    See United States v. Garza-Lopez, 410 F.3d 268,

273 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).         Moreover, on

this record, the error in sentencing Sanchez under a non-applicable

Sentencing was clear or obvious.        See United States v. Franks, 46

F.3d 402, 405 (5th Cir. 1995) (holding the district court committed


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clear and obvious error where application of the wrong section of

the Sentencing Guidelines resulted in a higher sentencing range).

       Because this error “affected the outcome of the district court

proceedings” by resulting in a higher sentencing range, we have

discretion to correct it.          See Olano, 507 U.S. at 734.          We hold

that the district court’s error substantially affected the fairness

of the judicial proceedings.           Accordingly, we vacate his sentence

and remand for resentencing.

       Because   we   remand     for   resentencing,    we    need   not     reach

Sanchez’s assertion that the district court erred under United

States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant

to a mandatory application of the Sentencing Guidelines.                         See

United States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005)

(“Because   we   have   determined       that   ...   misapplication       of   the

Guidelines requires a remand in this case, we need not consider

[Defendant-Appellant’s] argument that his Sixth Amendment rights

were violated.”).

       Sanchez’s constitutional challenge to 8 U.S.C. § 1326(b) is

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

(1998).     Although Sanchez contends that case was incorrectly

decided and that a majority of the Supreme Court would overrule it

in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we

have   repeatedly     rejected    such    contentions    on   the    basis      that

Almendarez-Torres remains binding.              See, e.g., Garza-Lopez, 410


                                         3
F.3d at 276.   Sanchez concedes his challenge is foreclosed in the

light of Almendarez-Torres and circuit precedent; he raises it to

preserve it for further review.

     In the light of the foregoing rulings, we need not reach the

Government’s   contention   that   Sanchez’s   plea   agreement   bars

consideration of the Booker and Apprendi issues.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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