                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 26, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-50500
                         Summary Calendar




UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOHNNY GERARDO CASTRO-PADILLA,
also known as Carlos Gerardo Alvarado-Rivera,
also known as Carlos Gerardo,
also known as Alex Montenegro,
also known as Carlos Gerardo Alvarado,
also known as Johnny Castro-Padilla,
also known as Joni Gerardo Castro


                                    Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 5:04-CR-582-1
                       --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Johnny Gerardo Castro-Padilla appeals his sentence imposed

following his guilty plea conviction to being found illegally in

the United States following deportation.    Castro was sentenced 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this opinion should not be published and is not precedent except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.
                            No. 05-50500
                                 -2-

63 months of imprisonment and a three-year term of supervised

release.

     Castro argues that the district court plainly erred in

increasing his offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A) for a drug trafficking offense based on his

prior conviction for a California drug offense.    The Government

concedes in a motion to vacate the sentence and remand for

resentencing that the statute under which Castro was convicted

could be violated by conduct that did not include a drug

trafficking offense within the meaning of the Guidelines.

     Because Cal. Health & Safety Code § 11352(a) encompasses

acts that are not included in the definition of a “drug

trafficking offense” in the context of § 2L1.2(b)(1), the

district court committed plain error in enhancing Castro’s

offense level based on the California offense.    See United States

v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005), cert.

denied, 126 S. Ct. 217 (2005).    Castro’s sentence is vacated and

the case is remanded for resentencing.

     The Government in its motion seeks permission to supplement

the record at resentencing with documents to support the

enhancement.   The Government admits that Castro’s indictment

merely tracked the language of the statue and does not establish

that the offense was a “drug trafficking offense” under the

Guidelines.    The district court should allow the Government to

supplement the record with only those documents authorized under
                           No. 05-50500
                                -3-

the categorical approach sanctioned by United States v. Shepard,

544 U.S. 13, 125 S. Ct. 1254, 1257 (2005) to determine whether

Castro’s prior conviction was a drug trafficking offense within

the meaning of § 2L1.2(b)(1)(A).    See United States v. Bonilla-

Mungia, 422 F.3d 316, 320 (5th Cir. 2005); Gutierrez-Ramirez, 405

F.3d at 358-59.   Thus, the Government’s motion for permission to

supplement the record at resentencing is granted.

     Castro argues that his sentence of imprisonment and

supervised release exceeds the statutory maximum for the charged

offense and that his sentence should be reduced to a maximum of

two years of imprisonment and one year of supervised release

pursuant to 8 U.S.C. § 1326(a).    He argues that the holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000) cast doubt on the

validity of the decision in Almendarez-Torres v. United States,

523 U.S. 224 (1998) that a prior conviction is a sentencing

factor and not an element of the offense.

      Castro’s constitutional challenge is foreclosed by

Almendarez-Torres.   Although Castro 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).   Castro properly concedes that his argument is
                          No. 05-50500
                               -4-

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

     AFFIRM CONVICTION; VACATE SENTENCE; REMAND FOR RESENTENCING;
GRANT MOTION TO SUPPLEMENT THE RECORD.
