                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 18, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-41487
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GUADALUPE MARTINEZ-ZAMORANO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:06-CR-387-ALL
                      --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Guadalupe Martinez-Zamorano (Martinez) appeals following his

guilty plea to being an alien unlawfully found in the United

States after deportation, having been previously convicted of a

felony, in violation of 8 U.S.C. § 1326.    He argues that the

district court misapplied the Sentencing Guidelines by

characterizing his 2003 conviction for illegal reentry as an

aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).

     Because Martinez did not raise the same argument in the

district court, review is for plain error.    United States v.

     *
       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this opinion should not be published and is not precedent except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. 06-41487
                                    -2-

Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).    To establish

plain error, Martinez must show that (1) there is an error,

(2) that is clear or obvious, and (3) that affects his

substantial rights.     See United States v. Olano, 507 U.S. 725,

731-37 (1993).    If these factors are established, the decision to

correct the error is within the sound discretion of this court,

which will not be exercised unless the error seriously affects

the fairness, integrity, or public reputation of judicial

proceedings.     Id. at 736.

     Martinez argues that his 2003 illegal reentry offense is not

an aggravated felony because he was not previously deported on

the basis of an offense described in 8 U.S.C. § 1101(a)(43) as an

aggravated felony.    Although Martinez has a 1991 Texas conviction

for possession of marijuana, he argues that this offense is not

an aggravated felony and may not be used as an aggravating factor

for purposes of the 2003 illegal reentry offense.    In light of

recent Supreme Court precedent, Martinez is correct.     See Lopez

v. Gonzales, 127 S. Ct. 625 (2006); see also 8 U.S.C.

§ 1101(a)(43)(O); United States v. Estrada-Mendoza, 475 F.3d 258,

259-61 (5th Cir. 2007).    The district court’s calculation of

Martinez’s offense level was therefore plain error.    The error

resulted in imposition of a sentence greater than would otherwise

have been permitted under the Sentencing Guidelines, thereby

affecting Martinez’s substantial rights and the fairness of the

judicial proceedings.     See United States v. Garza-Lopez, 410 F.3d
                            No. 06-41487
                                 -3-

268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005); United

States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001).       The

sentence therefore is vacated.

       Martinez also raises a constitutional challenge to

§ 1326(b), which is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).    Although Martinez 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 Garza-Lopez, 410 F.3d at

276.    Martinez 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.    Martinez’s

conviction is therefore affirmed.

       CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.
