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

                                                                   FILED
                                                                  May 15, 2008
                                 No. 06-41641
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

OCIEL ENRIQUE SALINAS-CAMPOS, also known as Ociel E Salinas

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:06-CR-652-ALL


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Ociel Salinas-Campos appeals his guilty-plea conviction and 37-month
sentence for unlawful reentry following removal from the United States. Salinas
asserts that the district court erred by enhancing his sentence pursuant to
Sentencing Guideline § 2L1.2(b)(1)(B), based on the determination that Salinas’
prior Texas conviction for possession with intent to deliver cocaine is a “drug-
trafficking offense” under that Guideline. Salinas contends Texas law defines
a “delivery” to include an “offer to sell,” which is conduct that is not punishable

      *
      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should not be published and is not precedent except under the limited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. 06-41641

under the Controlled Substances Act. TEX. HEALTH & SAFETY CODE ANN. §§
481.002(8), 481.112(a).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007).      In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Salinas’ indictment and judgment for his prior conviction, which were
included in the district court record, establish he pleaded guilty to an indictment
charging him with knowing and actual possession of cocaine with intent to
distribute. Because Salinas admitted to conduct which expressly constitutes a
drug-trafficking offense under § 2L1.2, the district court did not err in enhancing
his sentence. See United States v. Ford, 509 F.3d 714, 717-18 (5th Cir. 2007).
      In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Salinas
challenges the constitutionality of 8 U.S.C. § 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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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