                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    May 24, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41491
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RAMON BARRERA-CASTRO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (7:05-CR-405-ALL)
                      --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant     Ramon   Barrera-Castro    appeals       his

conviction and sentence for attempting to enter the United States

after deportation in violation of 8 U.S.C. § 1326(a) & (b).            He

contends that the district court plainly erred in increasing his

offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1999

and 2002 Texas convictions for possession with intent to deliver a

controlled substance, arguing that his prior offenses do not

constitute drug trafficking offenses.     As Barrera-Castro did not

raise this issue in the district court, our review is limited to

     *
       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this opinion should not be published and is not precedent except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.
plain error.      See United States v. Green, 324 F.3d 375, 381 (5th

Cir. 2003).      Barrera-Castro has two prior Texas convictions for

possession with intent to deliver cocaine in violation TEX. HEALTH

& SAFETY CODE ANN. § 481.112(a)(Vernon 1993), which defines “deliver”

in    relevant   part    to     include      “offering        to    sell    a   controlled

substance, counterfeit substance, or drug paraphernalia.”                              The

indictments      and    the     judgments        concerning         these   prior    Texas

convictions do not provide the specific means of commission of the

offenses, and Barrera-Castro has not admitted such facts.                              The

district court plainly erred in increasing Barrera-Castro’s offense

level relying solely on the factual narrative in the Presentence

Report.    See United States v. Gonzales, __ F.3d __, No. 05-41221,

2007 WL 1063993 at **2-3 (5th Cir. Mar. 7, 2007); see also United

States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied,

126 S.     Ct.   298    (2005).        The   error      affected      Barrera-Castro’s

substantial rights because, without the 16-level enhancement, his

guidelines sentencing range would have been 37-46 months, much less

than his 63-month sentence.            See Gonzales, 2007 WL 1063993 at * 2.

As the error clearly affected Barrera-Castro’s sentence, the error

seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.             See id. at *3.           Accordingly, Barrera-

Castro’s    sentence     is     vacated,         and   the    case    is    remanded   for

resentencing in accordance with Gonzales.

       Barrera-Castro         also    challenges        the    constitutionality        of

§    1326(b)’s   treatment       of   prior       felony      and    aggravated     felony

                                             2
convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).             Barrera-Castro’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998).     Although he 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.     Barrera-Castro   properly   concedes     that    his   argument   is

foreclosed in light of Almendarez-Torres and circuit precedent, but

he raises it here to preserve it for further review.               Barrera-

Castro’s conviction is affirmed.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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