                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 1, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-50255
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HUMBERTO MEABE-MORALES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 2:04-CR-523-ALL-AML
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Humberto Meabe-Morales challenges his sentence imposed

following his guilty plea to being unlawfully present in the

United States following deportation, a violation of 8 U.S.C.

§ 1326.

     Meabe-Morales argues that, because the indictment did not

allege that he had a prior felony or aggravated felony

conviction, it charged only an offense under 8 U.S.C. § 1326(a)

for which the maximum penalty is two years of imprisonment.        He


     *
       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this opinion should not be published and is not precedent except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. 05-50255
                                -2-

argues that his 46-month sentence under 8 U.S.C. § 1326(b)

violates his constitutional right to due process.   This argument

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

224, 235 (1998).   Although Meabe-Morales contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), 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).      Meabe-

Morales 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.

     Meabe-Morales also argues that the district court erred by

determining that he had a prior “drug trafficking offense” and

thereby enhancing his base offense level by 16 levels.     Under

U.S.S.G. § 2L1.2(b)(1)(A)(i) (2004), the offense level for

unlawfully entering or remaining in the United States is

increased 16 levels if the defendant was deported or removed

previously after being convicted of a felony drug trafficking

offense that resulted in a sentence of 13 or more months of

imprisonment.   For the purpose of this enhancement, a “drug

trafficking offense” is defined as “an offense under federal,

state, or local law that prohibits the manufacture, import,

export, distribution, or dispensing of a controlled substance (or
                           No. 05-50255
                                -3-

a counterfeit substance) or the possession of a controlled

substance (or counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.”    U.S.S.G. § 2L1.2,

comment. (n.1(B)(iv)) (2004).    Meabe-Morales’s sentence was

enhanced was based on his prior North Carolina conviction for the

felony offense of “trafficking in marijuana” by transporting in

excess of 10 pounds of marijuana, under N.C. GEN. STAT.

§ 90-95(h)(1) (2001).   The state’s label of the offense of

transporting more than 10 pounds of marijuana as “trafficking” is

not controlling.   See Taylor v. United States, 495 U.S. 575, 592

(1990).   This offense does not fall within § 2L1.2's definition

of a drug trafficking offense.    See Garza-Lopez, 410 F.3d at 273.

Without that conviction, the 16-level enhancement is

inapplicable.   We accordingly VACATE Meabe-Morales’s sentence and

REMAND to the district court for re-sentencing.
