           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            June 6, 2008
                                     No. 07-40745
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ADAN SANCHEZ-VASQUEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-261-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Adan Sanchez-Vasquez pleaded guilty to violating 8 U.S.C. § 1326 by
illegally reentering the United States following deportation. After enhancing his
offense level by 16 levels because of his prior conviction under TEX. PENAL CODE
ANN. § 30.02(a) for burglary of a habitation, the district court sentenced
Sanchez-Vasquez to serve 75 months in prison.
       On appeal Sanchez-Vasquez contends that his burglary conviction was not
for a crime of violence (COV) within the meaning of U.S.S.G. § 2L1.2. He argues


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40745

that the statute under which he was convicted, TEX. PENAL CODE ANN. § 30.02(a)
includes a means to commit the offense that does not meet the definition of a
generic burglary as required by the Guidelines to impose such an enhancement.
Sanchez-Vasque also asserts that although the indictment charged him
conjunctively under two sections of the statute, one section of which satisfied the
definition of generic burglary, his guilty plea did not establish that he committed
the conduct under that section.
      Because Sanchez-Vasquez did not raise this issue below, we review for
plain error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To
show plain error, Sanchez-Vasquez must show that there was an error that was
clear and obvious and affected his substantial rights. See id. If that showing is
made, we may exercise our discretion to notice the error if it seriously affects the
“fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted).
      The indictment charging Sanchez-Vasquez tracked both § 30.02(a)(1) and
§ 30.02(a)(3), but neither it nor any other state-court document illuminated
under which subsection Sanchez-Vasquez had been convicted. Thus, we cannot
determine whether Sanchez-Vasquez pleaded guilty to an offense that meets the
definition of a generic burglary. See United States v. Morales-Martinez, 496 F.3d
356, 359-60 (5th Cir. 2007). Accordingly, we hold that the district court plainly
erred in imposing a 16-level sentencing enhancement.
      Sanchez-Vasquez has also shown that his substantial rights were affected
because there is “a reasonable probability that, but for the district court’s
misapplication of the Guidelines, [he] would have received a lesser sentence.”
United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (internal quotation
marks omitted). In the absence of the erroneous 16-level enhancement, Sanchez-
Vasquez would have been subject to only an eight-level enhancement for the
commission of an aggravated felony. See § 2L1.2(b)(1)(C). His total offense level
would have been reduced from 21 to 13, and, with a criminal history category of

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                                  No. 07-40745

V, his guidelines range would have been          reduced to 30 to 37 months,
significantly lower than the 75-month sentence imposed.           Thus, Sanchez-
Vasquez has shown that the district court’s error resulted in a substantially
different sentence and affected the fairness of the judicial proceeding. See
Gonzales, 484 F.3d at 716. Consequently, we must vacate Sanchez-Vasquez’s
sentence and remand for resentencing.
      Sanchez-Vasquez also maintains the "felony" and "aggravated felony"
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).
            AFFIRMED IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING.




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