                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 27, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-20374
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

HECTOR GONZALEZ REYNA,

                                      Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:04-CR-166
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Hector Gonzalez Reyna pleaded guilty without a plea

agreement to possession of a firearm by a felon and was sentenced

to 120 months of imprisonment and three years of supervised

release.   He appeals his sentence.

     Reyna argues that the district court plainly erred by

enhancing his sentence based on a prior conviction for a

“controlled substance offense” because his Texas conviction for

delivery of a controlled substance did not qualify.     He contends

that delivery of cocaine as defined under Texas Health and Safety

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this opinion should not be published and is not precedent except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

Code § 481.112 does not automatically qualify as a controlled

substance offense because the statutory definition of delivery

under Texas law includes offering to sell a controlled substance,

which is broader than and includes acts outside of the guidelines

definition of a controlled substance offense.    He contends that

the district court was not allowed to rely on the Presentence

report’s (PSR’s) characterization of his offense in determining

whether the prior conviction was a controlled substance offense.

       Because Reyna did not object to the application of U.S.S.G.

§ 2K2.1(a)(4)(A) in the district court, this court reviews for

plain error.    United States v. Garza-Lopez, 410 F.3d 268, 272

(5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

       Section 2K2.1(a)(4)(A) provides for a base offense level of

20 if the “defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of either a crime

of violence or a controlled substance offense.”    According to the

PSR, Reyna was convicted in 2000 of delivery of cocaine.    Based

on information from the Houston Police Department, Reyna sold two

rocks of crack cocaine to an undercover officer.

       “Under the categorical approach set forth in Taylor v.

United States, 495 U.S. 575, 602 . . . (1990), a district court

looks to the elements of a prior offense, rather than to the

facts underlying the conviction, when classifying a prior offense

for sentence enhancement purposes.”    Garza-Lopez, 410 F.3d at

273.    In considering whether a prior conviction qualifies as a
                           No. 05-20374
                                -3-

controlled substance offense, the court may look to the statutory

definition and elements of the offense, the charging paper, a

written plea agreement, the guilty-plea transcript, factual

findings by the trial judge to which the defendant assented, or

jury instructions.   See Shepard v. United States, 544 U.S. 13, 16

(2005) (addressing enhancement under the Armed Career Criminal

Act (ACCA)); Garza-Lopez, 410 F.3d at 273.   However, “a district

court is not permitted to rely on a PSR's characterization of a

defendant's prior offense for enhancement purposes.”   Garza-

Lopez, 410 F.3d at 274.

     The statutory definition of the offense must be considered

because the record includes only the PSR’s description of the

offense based on information from the police.   At the time of

Reyna’s conviction in 2000, § 481.112 provided that: “a person

commits an offense if the person knowingly or intentionally

manufactures, delivers, or possesses with intent to manufacture

or deliver a controlled substance listed in Penalty Group 1.”

§ 481.112(a) (Vernon 1994).   “Deliver” is defined to include

“offering to sell a controlled substance.”   § 481.002(8) (Vernon

1999).

     In United States v. Gonzales, ___ F.3d ___, No. 05-41221,

2007 WL 1063993 at * 1 (5th Cir. Mar. 7, 2007), we considered

whether a conviction under § 481.112 for unlawful delivery of a

controlled substance warranted a 16-level increase under
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                                  -4-

§ 2L1.2(b)(1)(A)(i), and whether the error affected the

defendant’s substantial rights.    We held that the statutory

definition of delivery of a controlled substance, as defined in

§ 481.112, encompasses activity that does not fall within

§ 2L1.2's definition of drug trafficking offense.      Id.   We held

that the district court erred in applying the drug trafficking

enhancement and that the error was plain.      Id.

     A “controlled substance offense” under § 2K2.1 has the

meaning given in § 4B1.2(b) and comment.(n.1), and it is defined

in almost the identical manner as a “drug trafficking offense”

within the meaning of § 2L1.2.     See § 4B1.2(b); § 2L1.2, comment.

(n.1(B)(iv)).   The definitions of “controlled substance offense”

and “drug trafficking offense” are identical for our purposes

under the guidelines.

     Our decision in Gonzales, 2007 WL 1063993 at * 1-2, that a

conviction under § 481.112 encompasses activity that does not

fall within § 2L1.2's definition of drug trafficking offense,

applies equally to the definition of controlled substance offense

in § 2K2.1.   The district court erred in determining, based on

the PSR’s description of his conduct, that Reyna’s prior

conviction was a controlled substance offense, and the error was

plain.   See id.

     We must then determine whether the error affected Reyna’s

substantial rights.     See id. at * 3.   Reyna argues that the

sentencing error affected his substantial rights because absent
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                                -5-

the enhancement for a prior conviction for a controlled substance

offense, his correct base offense level would have been 14 under

§ 2K2.1(a)(6), and, with the other unchallenged offense level

adjustments and a criminal history category of III, his guideline

range would have been 41-51 months.

     In Gonzales, we determined that the defendant had satisfied

the third prong of plain error because absent the erroneous

enhancement, the defendant’s guideline range would have been

significantly lower than the sentence he received.    2007 WL

1063993 at * 3.   We concluded that the defendant had satisfied

the fourth prong of plain error because the district court’s

error clearly affected the sentence.   Id.   We vacated the

defendant’s sentence and remanded for resentencing.    Id.

     Without the enhancement for a prior conviction for a

“controlled substance offense,” Reyna’s guideline range would

have been 41-51 months, significantly lower than the guideline

range of 78-97 months determined by the district court.      Reyna

has satisifed the third prong of plain error.    See Gonzales, 2007

WL 1063993 at * 3.   If the district court had started with a

guideline range of 41-51 months, it is not clear that the

district court would have varied from the guideline range to 120

months.   We conclude that the error clearly affected the

sentence.   See Gonzales, 2007 WL 1063993 at * 3.

     Reyna also argues that the district court erred by imposing

an unreasonable sentence above the applicable imprisonment range.
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                                 -6-

We do not reach the reasonableness issue because we cannot say

that the district court’s error in calculating the advisory

Guidelines range did not affect the district court’s selection of

the 120-month sentence because the erroneously calculated

sentencing range served as a reference point for the upward

departure.    See United States v. Davis, 478 F.3d 266, 273-74 (5th

Cir. 2007).

     Reyna’s sentence is VACATED and the case is REMANDED for

resentencing.
