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

                                                                            FILED
                                                                          March 24, 2008

                                     No. 07-10754                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JOSE LUIS NUNEZ-GONZALEZ

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 6:07-CR-16-ALL


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Luis Nunez-Gonzalez pleaded guilty to illegal reentry after
deportation. The district court enhanced Nunez’s offense level pursuant to
Sentencing Guidelines § 2L1.2(b)(1)(B), based on Nunez’s previous New Mexico
guilty-plea conviction of possession of marijuana with intent to distribute.
Nunez was sentenced to a 37-month term of imprisonment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10754

      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).
      For the first time on appeal, Nunez challenges the application of the
above-referenced enhancement. Contending the New Mexico statute under
which he was convicted encompasses activity outside the generic definition of a
drug-trafficking offense, he maintains the statute is broad enough to criminalize
the possession of a controlled substance with the intent to administer it to
another. Nunez claims such conduct does not fall within the definition of a drug-
trafficking offense under the Sentencing Guidelines.
      As Nunez acknowledges, his failure to challenge the enhancement in the
district court results in our reviewing only for plain error. See United States v.
Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). For reversible plain error,
Nunez must show clear or obvious error that affects his substantial rights. E.g.,
United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). Even if these factors
are established, this court will generally not exercise its discretion to correct the
plain error unless it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings”. Id.
      Under the categorical approach provided in Taylor v. United States, 495
U.S. 575, 602 (1990), a district court must look to the elements of a prior offense,
rather than to the facts underlying the conviction, when classifying a prior
offense for sentence-enhancement purposes. E.g., United States v. Garza-Lopez,
410 F.3d 268, 273-74 (5th Cir. 2005). In a “narrow range of cases”, such as when
determining whether a prior conviction was a “drug trafficking offense”, a
district court may look beyond the elements of the offense when classifying a

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                                  No. 07-10754

prior offense for sentence-enhancement purposes. Id. at 273 (citations and
internal quotation marks omitted). Even where the district court may look
beyond the elements of the offense, however, the district court is “not free to
consider any facts, but may consider the statutory definition of the offense, [and,
inter alia,] the charging paper, and the jury instructions”. Id. A district court
may not rely solely on the presentence investigation report’s (PSR)
characterization of the offense for enhancement purposes. See id. at 273-74.
      The indictment for the New Mexico offense alleged that Nunez knowingly
possessed with the intent to transfer, or did attempt to transfer, marijuana to
another. Because the conduct described in Nunez’s state-court marijuana
indictment is equivalent to the offense of possession of a controlled substance
with intent to distribute, the district court did not plainly err in enhancing
Nunez’s offense level under § 2L1.2(b)(1)(B). See United States v. Ford, 509 F.3d
714, 717 (5th Cir. 2007).
      In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Nunez also
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). See 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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