           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                    FILED
                                                                                  August 8, 2007
                                       No. 06-20325
                                                                             Charles R. Fulbruge III
                                                                                     Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ELMER ALEXANDER FUENTES also known as, Elmer Alexander Fuentez

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:05-CR-413-ALL


Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       This case raises many of the same issues addressed in our recent opinion,
United States v. Morales-Martinez, No. 06-40467, ___ F.3d ___ (5th Cir. Aug. 8,
2007). The defendant, Elmer Alexander Fuentes (“Fuentes”), pleaded guilty to
illegal re-entry following deportation. 8 U.S.C. § 1326(a). The district court
applied a sentencing enhancement based on Fuentes’s prior conviction.
       The relevant facts of this case are substantially similar to Morales-
Martinez. In both cases, the defendant previously pleaded guilty to delivery of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20325

cocaine under section 481.112 of the Texas Health and Safety Code, the charging
document alleged that the defendant actually transferred, constructively
transferred, and offered to sell cocaine,1 and the Government does not now
present any other Shepard documents indicating the nature of the prior offense.
Id. at *3-4. And in this case, as in Morales-Martinez, the Government argues
that the defendant’s guilty plea admits to each of the theories of the offense
alleged in the charging document, thereby establishing that the defendant
actually transferred cocaine, as well as offered to sell cocaine. Id. at *5. We
rejected that argument in Morales-Martinez, id. at *6-8, and we reject it here;
because the conviction could have been supported by evidence that Fuentes
actually transferred, constructively transferred, or offered to sell cocaine, we
cannot say whether Fuentes transferred cocaine or merely offered to sell cocaine.
      Based on this rejection of the Government’s understanding of the guilty
plea, in Morales-Martinez we held that the district court improperly enhanced
the defendant’s sentence by treating the prior conviction as a “drug trafficking


      1
          In Fuentes’s case, the charging document, a criminal information, relevantly states,

      [I]n Harris County, Texas, ELMER ALEXANDER FUENTES, hereafter styled
      the Defendant, heretofore on or about August 20, 1999, did then and there
      unlawfully, intentionally and knowingly deliver by actual transfer to D.
      LAMBERT, a controlled substance, namely, COCAINE, weighing by aggregate
      weight, including any adulterants and dilutants, less than 1 gram.

             It is further presented that in Harris County, Texas, ELMER
      ALEXANDER FUENTES, hereafter styled the Defendant, heretofore on or
      about August 20, 1999, did then and there unlawfully, intentionally and
      knowingly deliver by constructive transfer to D. LAMBERT, a controlled
      substance, namely, COCAINE, weighing by aggregate weight, including any
      adulterants and dilutants, less than 1 gram.

             It is further presented that in Harris County, Texas, ELMER
      ALEXANDER FUENTES, hereafter styled the Defendant, heretofore on or
      about August 20, 1999, did then and there unlawfully, intentionally and
      knowingly deliver by offering to sell to D. LAMBERT, a controlled substance,
      namely, COCAINE, weighing by aggregate weight, including any adulterants
      and dilutants, less than 1 gram.

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                                        No. 06-20325

offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i). Id. at *8; United States v. Gonzales,
484 F.3d 712, 715 (5th Cir. 2007) (merely offering to sell cocaine is not a “drug
trafficking offense”). Our holding in Morales-Martinez is not entirely dispositive
of the issues in this case, though, because Fuentes’s sentencing enhancement
was based on the “aggravated felony” provision of § 2L1.2(b)(1)(C), rather than
the “drug trafficking offense” provision of § 2L1.2(b)(1)(A)(i) at issue in Morales-
Martinez.       The “aggravated felony” provision is broader than the “drug
trafficking offense” provision. See United States v. Calderon-Pena, 383 F.3d 254,
261 n.11 (5th Cir. 2004). As a result, we must additionally address the
Government’s argument that Fuentes’s prior conviction is an “aggravated felony”
even if it is not a “drug trafficking offense.”
       Specifically, the Government argues that Fuentes’s criminal information
reveals that he offered to sell drug paraphernalia, which can be an “aggravated
felony.” See 21 U.S.C. § 863(a)(1) (“It is unlawful for any person to sell or offer
to sell drug paraphernalia.”).2 The Government contends that because the
criminal information states that Fuentes “delivered” cocaine “weighing by
aggregate weight, including any adulterants and dilutants, less than 1 gram,”
and because adulterants and dilutants may be considered drug paraphernalia,
then Fuentes, at the very least, offered to sell drug paraphernalia. Cf. United


       2
         The Government argues that offering to sell drug paraphernalia is an “aggravated
felony” because the Guidelines incorporate the definition of “aggravated felony” in 8 U.S.C.
§ 1101(a)(43), which lists a number of different types of aggravated felonies, including, “illicit
trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act
[21 USCS § 802]), including a drug trafficking crime (as defined in section 924(c) of title 18,
United States Code).” Id. § 1101(a)(43)(B). “Drug trafficking crime,” as defined in 18 U.S.C.
§ 904(c) means, among other things, “any felony punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.).” The federal statute criminalizing offers to sell drug paraphernalia,
21 U.S.C. § 863(a)(1), is part of the Controlled Substances Act.
        The Government does not argue that merely offering to sell cocaine is prohibited by the
Controlled Substances Act, United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir.
2001), nor does it argue that offering to sell cocaine requires possession of cocaine, Stewart v.
State, 718 S.W.2d 286, 288 (Tex. Crim. App. 1986).

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                                  No. 06-20325

States v. Gray, 982 F.2d 1020, 1021 (6th Cir. 1993) (recounting the facts of the
case where the police arrested an individual with a large amount of a cocaine
dilutant and indicted him for conspiracy to unlawfully possess cocaine with
intent to distribute, but where, following a plea agreement, the defendant
pleaded guilty to selling drug paraphernalia).
      This court has never held that adulterants and dilutants may be
considered drug paraphernalia, and we need not consider that issue now. Even
assuming that adulterants and dilutants could be considered drug
paraphernalia, we do not read the criminal information to require a finding that
Fuentes pleaded guilty to offering to sell adulterants and dilutants. The phrase
“including any adulterants and dilutants” does not mean that there necessarily
were adulterants and dilutants; rather, it only means that if there were
adulterants and dilutants, they were counted toward the total aggregate weight
of the cocaine. Therefore, Fuentes’s conviction and the criminal information do
not necessitate a finding that Fuentes offered to sell drug paraphernalia, and the
district court erred in applying a sentencing enhancement for a prior conviction
of an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).
      Finally, Fuentes challenges the constitutionality of the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2).             The
constitutionality of these provisions was upheld in Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Almendarez-Torres is binding precedent unless
overruled by the Supreme Court. Therefore, Fuentes’s argument is foreclosed
by precedent. United States v. Mendez-Villa, 346 F.3d 568, 570-571 (5th Cir.
2003).
      Because the district court improperly calculated Fuentes’s sentencing
guideline range by applying an eight-level sentencing enhancement under
U.S.S.G. § 2L1.2, we VACATE the sentence and REMAND for re-sentencing.



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