                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                       June 4, 2007

                                                             Charles R. Fulbruge III
                                                                     Clerk
                           No. 06-40603
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DANIEL PEREZ-GUILLEN, also known as Jesus Bonilla,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-2357-ALL
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Daniel Perez-Guillen (Perez) appeals his 57-month sentence

for illegal reentry into the United States following deportation,

in violation of 8 U.S.C. § 1326(a) and (b).        Perez argues that

the district court erred by applying a 16-level enhancement to

his sentence because his 1994 conviction of delivery of a

controlled substance did not qualify as a “drug trafficking

offense” under § 2L1.2(b)(1)(A)(i).    He contends that the statute

under which he was convicted, TEX. HEALTH   AND   SAFETY CODE § 481.112

(Vernon 1993), punished an offer to sell a controlled substance,

     *
       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this opinion should not be published and is not precedent except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. 06-40603
                                  -2-

conduct beyond the ambit of § 2L1.2’s definition of a “drug

trafficking offense.”     He asserts that the state-court documents

presented in support of the enhancement failed to show that he

had pleaded guilty to delivery of a controlled substance by

actual or constructive transfer, rather than by offering to sell

a controlled substance.     Perez concludes that, absent specifics

as to his plea, the Government had failed to prove that his prior

conviction was a “drug trafficking offense” that merited a

16-level enhancement.

     At the time Perez was charged, § 481.112(a) provided that:

“a person commits an offense if the person knowingly or

intentionally manufactures, delivers, or possesses with intent to

manufacture or deliver a controlled substance listed in Penalty

Group 1.”   “Deliver” was defined to include the “transfer,

actually or constructively, to another a controlled substance,

counterfeit substance, or drug paraphernalia” and “offering to

sell a controlled substance, counterfeit substance, or drug

paraphernalia.”   § 481.002(8).   Perez’s indictment charged him

with delivery of a controlled substance by actual transfer,

constructive transfer, and offering to sell.     As Perez points

out, the contents of his indictment are not dispositive because,

under Texas law, the State may “plead alternative ‘manner or

means’ in the conjunctive when proof of any one ‘manner or means’

will support a guilty verdict.”     Johnson v. State, 187 S.W.3d

591, 604 (Tex. App. 2006).    Perez’s judgment reflected only that
                            No. 06-40603
                                 -3-

Perez had pleaded guilty to the delivery of a controlled

substance, without specifying the means by which he committed the

offense.   Consequently, the district court could not properly

have relied on the language of § 481.112, Perez’s indictment, or

his judgment to determine that Perez had committed a “drug

trafficking offense” as they are overbroad.     See United States v.

Garza-Lopez, 410 F.3d 268, 274-75 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005).   The record does not include a transcript of

the guilty plea hearing or any other appropriate documentary

evidence that would establish whether Perez admitted to actually

or constructively transferring a controlled substance, rather

than merely offering to sell a controlled substance.     See Shepard

v. United States, 544 U.S. 13, 16 (2005).     Accordingly, the

district court erred by applying a 16-level enhancement to

Perez’s sentence.    See United States v. Gonzales,      F.3d    ,

No. 05-41221, 2007 WL 1063993 at **1-2 (5th Cir. Mar. 7, 2007).

The Government does not contend that the error was harmless.     See

United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).

Accordingly, Perez’s sentence is vacated and remanded for

resentencing.

     Perez appeals his guilty-plea conviction of, and sentence

for, violating 8 U.S.C. § 1326 by being found in the United

States without permission after deportation.    He argues, in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 57-month

term of imprisonment imposed in his case exceeds the statutory
                           No. 06-40603
                                -4-

maximum sentence allowed for the § 1326(a) offense charged in his

indictment.   He challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must

be found by a jury.

     Perez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although he 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 Garza-Lopez, 410 F.3d at 276.   Perez

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.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
