                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 25, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-40982
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BERNABE COLINDRES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-137-ALL
                      --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Bernabe Colindres appeals his guilty-plea conviction and

sentence for re-entry of a deported alien in violation of 8

U.S.C. § 1326(a) and (b)(1).

     Colindres argues that the district court erroneously

calculated his criminal history points when it assigned two

criminal history points to his 2001 Youngstown, Ohio, Municipal

Court conviction for Improper Handling of a Firearm in a Motor

Vehicle (Misdemeanor).   The plain error standard of review

     *
        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that this opinion should not be published and is not precedent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. 03-40982
                                  -2-

governs this issue since it was not raised below.    United States

v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994).    The Government

concedes that there was an error, that the error was clear or

obvious, and that the error affected Colindres’ substantial

rights.   See United States v. Olano, 507 U.S. 725, 732 (1993)

(setting forth elements of plain error review).

     The text of the Presentence Report (“PSR”) states that for

the offense at issue 173 days of Colindres’ total sentence of 180

days were suspended.    In accordance with the relevant Guidelines,

this “sentence of imprisonment” was therefore only seven days and

thus this conviction should not have received two criminal

history points.     See U.S.S.G. § 4A1.1(b) and comment.; U.S.S.G.

§ 4A1.2(b)(1) and (2); United States v. Carbajal, 290 F.3d 277,

283 (5th Cir.), cert. denied, 537 U.S. 934 (2002) (if the

guideline language is unambiguous, this court’s inquiry begins

and ends with an analysis of the plain meaning of that language).

This offense also did not qualify for criminal history points

pursuant to U.S.S.G. § 4A1.1(c), since Colindres had other

convictions that scored four points pursuant to U.S.S.G.

§ 4A1.1(c).   Thus, the Guidelines indicate that there was an

error in the PSR.    Because the parties failed to mention this

error to the district court, the error also affected Colindres’

substantial rights, since Colindres’ sentence is greater than the

upper end of the correct Guidelines range.    Additionally, the

fairness of the judicial proceeding was seriously affected
                            No. 03-40982
                                 -3-

because the increase in Colindres’ sentence was erroneous and

substantial.    See United States v. Aderholt, 87 F.3d 740, 744

(5th Cir. 1996).    We therefore VACATE the sentnece insofar as its

calculation includes two criminal history points for Colindres’

2001 Youngstown, Ohio, Municipal Court conviction for Improper

Handling of a Firearm in a Motor Vehicle (Misdemeanor).

     Colindres also argues for the first time on appeal that the

district court’s application of the eight-level offense level

increase of U.S.S.G. § 2L1.2(b)(1)(C) was plain error.    He argues

that the conviction that formed the basis for the adjustment, a

California conviction for “Petty Theft With a Prior (Felony)” is

not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).     The

Government does not concede that the district court erred with

respect to this issue.

     Unlike with the prior issue, the text of the PSR indicates

that the district court did not commit clear or obvious error

with respect to this issue.    See Olano, 507 U.S. at 732-34.

Rather, Colindres had a theft conviction prior to being deported

and he was sentenced to one-year imprisonment for the theft

conviction.    Based on the plain language of U.S.S.G.

§ 2L1.2(b)(1)(C), the theft conviction qualified as an aggravated

felony.   See U.S.S.G. § 2L1.2(b)(1)(C) (the base offense level is

increased by eight levels if a defendant who unlawfully enters

the United States was previously deported after a conviction for

an aggravated felony); U.S.S.G. § 2L1.2(b)(1)(C), comment. n.2
                           No. 03-40982
                                -4-

(“aggravated felony” has the meaning given that term in 8 U.S.C.

§ 1101(a)(43)); 8 U.S.C. § 1101(a)(43) (aggravated felony means,

inter alia, a theft offense for which the term of imprisonment is

at least one year); 8 U.S.C. § 1101(48)(B) (term of imprisonment

is deemed to include the period of incarceration or confinement

regardless of any suspension of that imprisonment in whole or in

part); United States v. Yanez-Huerta, 207 F.3d 746, 749 (5th Cir.

2000) (applying 8 U.S.C. § 1101(48)(B) to aggravated felony

determination of U.S.S.G. § 2L1.2).   Thus, the language of the

PSR and U.S.S.G. § 2L1.2(b)(1)(C) indicates that the adjustment

is appropriate and the district court therefore did not plainly

err when it relied on information in the PSR that Colindres did

not challenge.   See United States v. Vital, 68 F.3d 114, 120 (5th

Cir. 1995); United States v. Davis, 76 F.3d 82, 84 (5th Cir.

1996); United States v. Ramirez, _ F.3d _ (5th Cir. April 5,

2004) (No. 03-60576) 2004 WL 828096, *1-2.   The district court’s

judgment with respect to this issue is AFFIRMED.

     Colindres also argues that the “felony” and “aggravated

felony” provisions set forth in 8 U.S.C. § 1326(b)(1) and (b)(2)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).   Colindres’ challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 227-47 (1998), in which

the Supreme Court held that Congress intended to set forth

sentencing factors in 8 U.S.C. § 1326(b), not a separate criminal

offense, and that the sentencing provisions in 8 U.S.C. § 1326(b)
                             No. 03-40982
                                  -5-

were not unconstitutional.    The Supreme Court in Apprendi

expressly declined to overrule Almendarez-Torres.    See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).   This court must therefore follow the precedent

set in Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    Dabeit, 231 F.3d at 984.

     AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR

RESENTENCING.
