                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 14, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-41262
                          Summary Calendar




UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARCO ANTONIO MARTINEZ-MORENO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:06-CR-546
                      --------------------

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.

PER CURIAM:*

     Marco Antonio Martinez-Moreno (Martinez) appeals following

his guilty plea conviction for illegal reentry after deportation.

Martinez was sentenced to a 40-month term of imprisonment and a

three-year term of supervised release.

     Martinez argues that the district court erred in increasing

his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for a

drug trafficking offense based on his prior California cocaine

conviction.    The Government concedes the error and asserts that

     *
       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this opinion should not be published and is not precedent except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. 06-41262
                                 -2-

this court should vacate Martinez’s sentence and remand for

resentencing.

     The documents pertaining to Martinez’s California cocaine

conviction are ambiguous as to the statute of conviction.     The

charging document, which merely tracks the statutory language,

indicates that Martinez was convicted under CAL. HEALTH & SAFETY

CODE § 11352(a).   Section 11352(a) encompasses acts that are not

included in the definition of a “drug trafficking offense” in the

context of U.S.S.G. § 2L1.2(b)(1)(B).      See United States v.

Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005), cert.

denied, 126 S. Ct. 217 (2005).   Accordingly, Martinez’s sentence

is vacated and the case is remanded for resentencing.

     Martinez also challenges the constitutionality of the

treatment of prior felony and aggravated felony convictions under

8 U.S.C. § 1326(b) as sentencing factors rather than elements of

the offense that must be found by a jury.     Martinez’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).     Although he contends

that Almendarez-Torres was incorrectly decided and that a

majority of the Supreme Court would overrule Almendarez-Torres in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have

repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding.   See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005).   Martinez properly concedes that his argument
                          No. 06-41262
                               -3-

is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for further

review.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.
