                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 27, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-40827
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALEXANDER MORALES-GARCIA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. B-03-CR-66-1
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Alexander Morales-Garcia appeals his sentence for illegal

reentry following deportation after having been convicted of an

aggravated felony.   He argues that the district court erred in

holding that his Nebraska misdemeanor conviction for third degree

sexual assault was an “aggravated felony,” thereby enhancing his

base offense level by eight levels pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C) (2002).



     *
        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that this opinion should not be published and is not precedent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. 03-40827
                               -2-

     The Government concedes that the eight-level enhancement was

erroneous; the elements of the offense of Morales’s misdemeanor

state conviction do not describe the sexual abuse of a minor, and

the district court was precluded from looking to Morales’s

underlying conduct to make such a determination.    See United

States v. Zavala-Sustaita, 214 F.3d 601, 603 (5th Cir. 2000).     We

therefore VACATE Morales’s sentence and REMAND for resentencing.

In light of the foregoing, the issue whether the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1)&(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), is moot.

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
