                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                     June 25, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 06-10805
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                versus

         JOSE JESUS TERRONES-LOPEZ, also known as Jose Jesus
                           Terrones-Vasquez,

                                                  Defendant-Appellant.



             Appeal from the United States District Court
                  for the Northern District of Texas
                             (3:06-CR-55)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose Jesus Terrones-Lopez appeals his sentence for illegal

reentry after having been deported, in violation of 8 U.S.C. §

1326(a) and (b).    He was sentenced to 50 months in prison.

     Terrones contends the district court erred by increasing his

base offense level under the advisory Guidelines by 16 levels,

having found that his Texas conviction of delivery of cocaine was

a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i).



     *
       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this opinion should not be published and is not precedent except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.
Because Terrones preserved this issue in district court, we review

it de novo.    See United States v. Villegas, 404 F.3d 355, 359 (5th

Cir. 2005).

     The indictment from Terrones’ prior conviction, the only

document introduced at sentencing in support of the 16-level

increase, stated he “did unlawfully, knowingly and intentionally

deliver, to-wit:    actually transfer, constructively transfer, and

offer to sell a controlled substance”.               Despite the pleading’s

conjunctive language, the statute is disjunctive, and the jury

could have convicted Terrones based only on an offer to sell.

United States v. Gonzales, No. 05-41221, 2007 WL 1063993, at *2

(5th Cir. 7 Mar. 2007).     Offering to sell a controlled substance,

however, is not a drug trafficking offense under § 2L1.2.             Id. at

*1; United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).            Accordingly, resentencing is

required.     See Gonzalez, 2007 WL 1063993, at *2.

     Terrones     also   challenges       the    constitutionality   of   the

treatment of prior felony and aggravated felony convictions under

8 U.S.C. § 1326(b) as sentencing factors rather than elements of

the offense that must be found by a jury. Terrones’ constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998).     Terrones properly concedes this; he raises

the issue only to preserve it for further review.




                                      2
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
                                        RESENTENCING




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