                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                      REVISED JANUARY 26, 2006
               IN THE UNITED STATES COURT OF APPEALS         January 25, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-10353
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BENJAMIN ALVAREZ GARCIA, also known as Jairo Camacho, also
known as Juan Valle Garcia, also known as Benjamin Albert
Garcia,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 4:04-CR-150-ALL-A
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Benjamin Alvarez Garcia (Garcia) appeals from the sentence

imposed following his guilty-plea conviction for illegal entry

after having been deported, in violation of 8 U.S.C. § 1326.

Garcia contends that the district court erred when it sentenced

him based on a prior conviction for delivering cocaine, as an




     *
       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this opinion should not be published and is not precedent except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. 05-10353
                                 -2-

aggravated-felony offense that warranted a 16-level offense level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i)(2004).

       The record indicates that no document was provided to the

district court to support the probation department’s

characterization of Garcia’s prior drug offense as a felony that

warranted this enhancement.    Thus, this court has no such

document before it in order to determine whether the district

court erred when it enhanced Garcia’s sentence.     See Shepard v.

United States, 125 S. Ct. 1254, 1257 (2005); United States v.

Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005) (citation omitted).

       The only support for the enhancement is the assertions that

are set forth in the presentence report (PSR).    For enhancement

purposes, a district court may not rely solely on the PSR’s

characterization of the offense.    See Garza-Lopez, 410 F.3d at

274.    There must be a “charging document, written plea agreement,

transcript of plea colloquy, [or an] explicit factual finding by

the trial judge to which the defendant assented.”    Shepard, 125

S. Ct. at 1257.    As shown by Shepard, 125 S. Ct. at 1257, 1259-

61, and Garza-Lopez, 410 F.3d at 273-75, the district court erred

when it determined that Garcia’s prior drug conviction warranted

the U.S.S.G. § 2L1.2((b)(1)(A)(I) enhancement.

       Garcia also contends that the treatment of felonies and

aggravated felonies as sentencing factors under § 1326(b)(1) and

(2) is unconstitutional in light of Apprendi v. New Jersey, 530
                               No. 05-10353
                                    -3-

U.S. 466 (2000), and that he should be resentenced subject to the

two-year maximum set forth in § 1326(a).

       Garcia’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Garcia contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding.     See Garza-Lopez, 410 F.3d at 276.   Garcia

properly concedes that Almendarez-Torres has not been overruled.

       We therefore VACATE Garcia’s sentence and REMAND for

resentencing.    “On remand, the district court should order the

Government to supplement the record with documents that might

establish which elements [of the prior conviction Garcia] pleaded

guilty to.”     United States v. Bonilla-Mungia, 422 F.3d 316, 321

(5th Cir. 2005).    Then the district court should reconsider

whether a 16-level sentence enhancement is warranted.       Id. at

322.

       VACATED AND REMANDED.
