                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 30, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40427
                          Summary Calendar




UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GILBERTO SANCHEZ-LOPEZ,

                                    Defendant-Appellant.



                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      No. 5:04-CR-2093-ALL
                      --------------------



Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Gilberto Sanchez-Lopez appeals his guilty-plea conviction of,

and sentence for, violating 8 U.S.C. § 1326 by being found in the

United States without permission after deportation.    He challenges

the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior

felony and aggravated felony convictions as sentencing factors


     *
       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this opinion should not be published and is not precedent except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.
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).     Sanchez-

Lopez’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 United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.

298 (2005).   Sanchez-Lopez 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.

     Sanchez-Lopez also argues that the district court erred in im-

posing his sentence when it classified his state conviction as a

drug trafficking offense that warranted a 12-level enhancement un-

der U.S.S.G. § 2L1.2(b)(1)(B).   Sanchez-Lopez is correct.   North

Carolina General Statute § 90-95, the state statute under which

Sanchez-Lopez was convicted, is worded so that some, but not all,

violations of the statute constitute a drug trafficking offense

consistent with the guidelines definition.    The offense for which

Sanchez-Lopez was convicted, attempted conspiracy to traffic mari-

huana by possession, is not a “drug trafficking offense” as that

term is defined for purposes of § 2L1.2(b)(1)(B). See Garza-Lopez,

410 F.3d at 273-74; United States v. Gutierrez-Ramirez, 405 F.3d

352, 352-60, cert. denied, 126 S. Ct. 217 (2005); United States v.
Rodriguez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003); see also

United States v. Meabe-Morales, 165 F. App'x 347, 349 (5th Cir.

2006).

     We accordingly VACATE Sanchez-Lopez’s sentence and REMAND for

resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
