                                                                                          United States Court of Appeals
                                                                                                   Fifth Circuit
                                                                                                F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                               September 20, 2006
                              FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk
                                            No. 05-40809
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                           Plaintiff-
                                                          Appellee,

                                                 versus

RODRIGO MEDINA-COVOS,

                                                                                        Defendant-Appellant.

                      ---------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                   USDC No. 5:04-CR-2596-ALL
                      ---------------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Rodrigo Medina-Covos (Medina) appeals the sentence imposed following his guilty-plea

conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He argues that the

district court reversibly erred in treating his prior drug conviction under CAL. HEALTH & SAFETY

CODE § 11352(a) as a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A). As Medina




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
preserved his objection in the court below, we review the district court’s determination de novo.

United States v. Gutierrez-Ramirez, 405 F.3d 352, 356 (5th Cir. 2005).

        When determining whether a prior offense warrants a sentencing enhancement under the

Guidelines, the district court generally “looks to the elements of the prior offense rather than the facts

underlying the conviction.” United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.), cert. denied,

126 S. Ct. 298 (2005)(citation omitted). In certain cases, such as Medina’s, a district court may look

beyond the elements of the offense when determining whether a drug trafficking offense was

committed. Taylor v. United States, 495 U.S. 575, 602 (1990). However, only “conclusive records

made or used in adjudicating guilt” should be used by the district court characterizing a sentence for

enhancement purposes.” Garza-Lopez, 410 F.3d at 274 (citing Shepard v. United States, 544 U.S.

13, 19-23 (2005)). This court has specifically rejected reliance on facts presented in presentence

reports to characterize prior offenses for enhancement purposes. See Garza-Lopez, 410 F.3d at 274

(citing Shepard, 544 U.S. 13).

        In the instant case, the documentation in the district court is too ambiguous to support an

enhancement. See Gutierrez-Ramirez, 405 F.3d at 357. The Government provided the district court

with the state Information and the minute entry for Medina’s plea colloquy. The minute entry states

that Medina pleaded guilty to “violation of section[s] § 11352.A [sic] Health and Safety Code in

count II” of the indictment. Only the first paragraph of count 2 of the indictment charged the

violation of § 11352(a). That paragraph tracked the language of § 11352(a) which contains acts not

encompassed by the Sentencing Guidelines enhancement sections and thus does not, without more,

support an enhancement. See Gutierrez-Ramirez, 405 F.3d at 359; see also CAL. HEALTH & SAFETY

CODE § 11352(a); U.S.S.G. § 2L1.2(b)(1)(A). The minutes do not indicate whether Medina pleaded


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guilty to the second paragraph of count 2, which states a more specific drug violation. Like the

abstract relied upon by the district court in Gutierrez-Ramirez, the minutes are only a “shorthand

description[]” of the legal proceeding at issue. The minutes do not establish specifically what Medina

pleaded. See 405 F.3d at 358. Additionally, despite noting that “counts/enhancements” were

dismissed, the minutes do not actually state which counts and enhancements the court dismissed.

        Given the ambiguity of the evidence, the district court erred in its determination that the prior

conviction was for a drug trafficking offense in the context of § 2L1.2(b)(1) and increasing Medina’s

offense level on that basis.

        Medina also contends that the treatment of felonies and aggravated felonies as sentencing

factors under § 1326(b)(1) and (2) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), and that he should be resentenced subject to the two-year maximum set forth in §

1326(a).

        Medina’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). Although Medina contends 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 Garza-Lopez, 410 F.3d at 276. Medina concedes

that Almendarez-Torres has not been overruled.

        For these reasons, we vacate Medina’s sentence and remand for resentencing.

        SENTENCE VACATED AND REMANDED FOR RESENTENCING.




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