                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS             June 25, 2007
                       FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                           No. 06-41101
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                               versus

  OMAR VASQUEZ, also known as Agustin Lara-Gomez, also known as
                       Omar Vasquez-Ortiz,

                                                Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                        (5:05-CR-2522-ALL)
_________________________________________________________________

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Omar Vasquez appeals his guilty plea conviction and 41-months

sentence for illegally reentering the United States after having

been previously deported.   Vasquez claims the district court erred

by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i),




 * 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opinion should not be published and is not precedent except under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.
based upon a determination that his Texas conviction for delivery

of a controlled substance was a drug trafficking offense.

      Pursuant to our decision in United States v. Gonzales, No. 05-

41221, 2007 WL 1063993, at *1 (5th Cir. 7 Mar. 2007), the district

court did err.      When a district court misapplies the advisory

Guidelines, remand is appropriate unless this court concludes, “on

the record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence

imposed”.    United States v. Davis, 478 F.3d 266, 273 (5th Cir.

2007) (internal quotations and citations omitted). Here, any error

was   harmless   because   the   court    stated   that,   even   if   it   had

miscalculated the Guidelines, it would have imposed the same

sentence.    See id.

      Vasquez also challenges the constitutionality of 8 U.S.C.

§ 1326(b).   He concedes his constitutional challenge is foreclosed

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

raises it here only to preserve it for further review.

                                                                  AFFIRMED




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