                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                                  July 17, 2007

                                                                                Charles R. Fulbruge III
                                                                                        Clerk
                                       No. 06-40429




                             UNITED STATES OF AMERICA,


                                                                      Plaintiff-Appellee


                                            VERSUS


              JUAN JOSE VEGA-GOMEZ, also known as Juan Vega,


                                                                    Defendant-Appellant




  Appeal from the United States District Court For the Southern
                District of Texas, Laredo Division
                           5:05-CR-02033


Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*

       Juan Vega-Gomez (“Vega-Gomez”) pleaded guilty to attempting to

reenter the United States after previously having been deported, in

violation of 8 U.S.C. § 1326(a) and (b) (2005).                            At sentencing,

Vega-Gomez received a 12-level enhancement based on a previous


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
conviction for delivery of a controlled substance and was sentenced

to 34 months’ imprisonment.              Vega-Gomez now appeals his sentence,

arguing that (1) the district court erred by enhancing his sentence

under     United       States        Sentencing   Guidelines      (“U.S.S.G.”)     §

2L1.2(b)(1)(B) (2005); and (2) the enhancement provisions contained

in 8 U.S.C. § 1326(b) are unconstitutional.                     For the following

reasons, the sentence is AFFIRMED.

                                            I.

     On October 13, 2005, Vega-Gomez pleaded guilty, without a

written plea agreement, to attempting to reenter the United States

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

1326(a) and (b).         The presentence report (“PSR”) recommended a 12-

level enhancement because of a prior conviction for an Illinois

drug offense which called for a sentence of 13 months or less.1

This recommendation was based on an Illinois state court conviction

for delivery of cocaine in which Vega-Gomez was sentenced to 18

months’ probation.

     Prior to sentencing, Vega-Gomez asserted that the 12-level

upward     adjustment      was       unconstitutional   under    Apprendi    v.   New

Jersey2 because it enhanced his sentence beyond 2 years.                    In doing

so, Vega-Gomez asked the court to hold that § 1326(b) was “facially

unconstitutional.”


     1
        U.S.S.G. § 2L1.2(b)(1)(B).
     2
        530 U.S. 466 (2000).

                                            2
     At    sentencing,       the   district   court   overruled   Vega-Gomez’s

objection to the application of the “drug trafficking” enhancement

based on Alemdarez-Torres v. United States.3             After an adjustment

for acceptance of responsibility, Vega-Gomez’s advisory guidelines

imprisonment range was 30 to 37 months.           The court sentenced him to

34 months, to be followed by a three-year term of supervised

release.    This appeal followed.

     Vega-Gomez raises two issues: (1) whether the district court

misapplied the Guidelines when it enhanced his offense level by 12

levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B); and (2) whether the

enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional.

                                        II.

                                        A.

     Vega-Gomez argues that the district court erred by enhancing

his sentence by 12 levels because the Illinois conviction for

delivery of a controlled substance includes acts that cannot form

the basis for a sentencing enhancement under § 2L1.2(b)(1)(B).             As

Vega-Gomez concedes, we review for plain error since he did not

object in the district court to the 12-level enhancement on the

basis that his conviction did not constitute a “drug trafficking

offense.”

     Plain error exists when “(1) there was an error; (2) the error

was clear and obvious; and (3) the error affected the defendant’s


     3
      523 U.S. 224 (1998).

                                         3
substantial rights.”4 Even if these conditions are met, an appellate

court may exercise its discretion to notice the error only if “the

error      seriously       affects       the       fairness,     integrity,        or    public

reputation of judicial proceedings.”5

       Vega-Gomez        argues      that      a       conviction    for    delivery       of       a

controlled substance under 56 ½ Ill. Comp. Stat. Ann. ¶ 1401 (West

1988)6 does not qualify as a “drug trafficking offense” because a

person can be found criminally liable for “delivery” even if the

person only solicited the delivery of drugs,7 and that solicitation

does not qualify as a “drug trafficking offense.”                                   We assume

without deciding that Vega-Gomez is correct.

       We    conclude,       however,       that         even   if   the    district       court

committed obvious error, Vega-Gomez has failed to satisfy the third

prong of plain error review.                           Vega-Gomez bears the burden of

proving that the error affected his substantial rights.8                                To meet

that burden, he must show a reasonable probability that, but for




       4
        United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
       5
        Id. at 358-59.
       6
        Vega-Gomez was convicted under former Ill. Rev. Stat. 1985, ch. 56 ½, ¶ 1401(c).
       7
        See 38 Ill. Comp. Stat. Ann. § 5-2(c) (West 1961) (formerly Ill. Rev. Stat. 1961, ch. 38,
¶ 5-2(c)); People v. Stanciel, 606 N.E.2d 1201, 1209 (Ill. 1992); People v. Anders, 592 N.E.2d
652, 658 (Ill. App. Ct. 1992); People v. Deatherage, 461 N.E.2d 631, 633-34 (Ill. App. Ct.
1984).
       8
        United States v. Olano, 507 U.S. 725, 734 (1993).

                                                   4
the error, he would have received a lesser sentence.9

       Vega-Gomez does not argue to us that his conviction was for

solicitation, the conduct prohibited under the Illinois statute

that may not qualify as a “drug trafficking offense.”10                               Vega-Gomez

does not contend that were the district court to review allowable

evidence, that this evidence would show that the conduct for which

he was convicted was limited to solicitation and, therefore, not a

“drug trafficking offense.”11 Instead, Vega-Gomez simply shows that

without the 12-level enhancement he would have received a shorter

sentence.           Without at least arguing that the drug trafficking

enhancement was ultimately wrong, Vega-Gomez cannot show that he

would have received a lesser sentence.12

       Vega-Gomez has not shown that the error - if any - affected

his substantial rights.               Therefore, his argument fails under plain

error review.

                                                 B.

       Vega-Gomez contends that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional.                                Vega-Gomez



       9
        Villegas, 404 F.3d at 364.
       10
        See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006); United States v.
Benavidez-Gonzalez, 202 Fed. App’x 718, 720-21 (5th Cir. 2006) (unpublished); United States v.
Gonzalez-Patino, 182 Fed. App’x 285, 287 (5th Cir. 2006) (unpublished).
       11
         The government argues in its brief that “Vega[-Gomez] does not argue that he was only
convicted of solicitation . . . .” Vega-Gomez, in his reply brief, does not challenge this statement.
       12
            See Ochoa-Cruz, 442 F.3d at 867.

                                                  5
concedes    that   his   challenge   to     the   constitutionality   of   §§

1326(b)(1) and (2) is foreclosed by Almendarez-Torres, and raises

the argument to preserve it for further review.

                                     III.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.

AFFIRMED.




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