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

                                                                  FILED
                                                                 January 2, 2008
                                No. 07-40067
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ARTUTO ESPARZA-GONZALEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:06-CR-908-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Arturo Esparza-Gonzalez appeals his conviction of illegal reentry. He
contends that the district court erred by adjusting his offense level by 16 levels
based on his 1996 state-court conviction of delivery of marijuana. Esparza-
Gonzalez argues that the 1996 conviction does not fall within the definition of
a drug-trafficking offense because the offense can be committed by merely
offering to sell drugs and because it is unclear from the documents in the record
in what manner he committed his offense.

      *
      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should not be published and is not precedent except under the limited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. 07-40067

      In United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.), cert. denied, 127
S. Ct. 3031 (2007), we held that the definition of a drug-trafficking offense under
U.S.S.G. § 2L1.2 did not include the conduct of offering to sell a controlled
substance in violation of TEX. HEALTH & SAFETY CODE ANN. § 481.112, the
statute criminalizing unlawful delivery of a controlled substance. See TEX.
HEALTH & SAFETY CODE ANN. § 481.002(8) (defining “deliver” as including
“offering to sell a controlled substance, counterfeit substance, or drug
paraphernalia”). Because the state indictment and jury instructions indicated
that Gonzales could have been convicted for merely offering to sell a controlled
substance, this court held that the district court committed reversible plain error
by utilizing his Texas conviction to apply the 16-level adjustment under
§ 2L1.2(b)(1)(A)(i). Gonzales, 484 F.3d at 714-16. Accordingly, the sentence was
vacated and the case was remanded for resentencing. Id. at 716.
      Esparza-Gonzalez’s indictment contains language nearly identical to the
indictment in Gonzales. The judgment indicated only that he pleaded guilty, and
did not indicate how he committed his offense. The notation in Esparza-
Gonzalez’s probation-revocation judgment merely indicated that he had pleaded
guilty of delivery of marijuana; it did not indicate how he committed his offense.
The Government did not present documents approved by Shepard v. United
States, 544 U.S. 13, 16 (2005), proving that Esparza-Gonzalez committed a drug-
trafficking offense. The district court’s judgment is vacated and the case is
remanded for resentencing.
       Esparza-Gonzalez also maintains the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).

                                         2
                   No. 07-40067

AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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