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

                                                                     FILED
                                                                  November 25, 2008
                                 No. 07-50749
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee
v.

ALFREDO MANUEL MARTINEZ

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-100-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Alfredo Manuel Martinez pleaded guilty without a written plea agreement
to unlawfully reentering the United States following deportation, in violation of
8 U.S.C. § 1326. The district court imposed a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A) based on Martinez’s prior conviction for burglary
under § 459 of the California Penal Code.         Martinez now challenges that
enhancement.
      Because Martinez did not raise this issue in the district court, we review
for plain error, which requires (1) error, (2) that is clear or obvious, and (3) 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should not be published and is not precedent except under the limited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. 07-50749

affects substantial rights. See United States v. Garza-Lopez, 410 F.3d 268, 272
(5th Cir. 2005). If these conditions are met, we will reverse only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In light of United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th
Cir. 2008), and United States v. Ortega-Gonzaga, 490 F.3d 393, 395-96 (5th Cir.),
cert. denied, 128 S. Ct. 410 (2007), burglary under § 459 of the California Penal
Code does not constitute burglary of a dwelling under U.S.S.G. § 2L1.2. We
reject the Government’s suggestion that we employ the modified categorical
approach and look to the charging documents in this case to characterize
Martinez’s burglary offense. See Gonzalez-Terrazas, 529 F.3d at 298; Ortega-
Gonzaga, 490 F.3d at 396 n.5. Pursuant to Ortega-Gonzaga and Gonzalez-
Terrazas, the enhancement in this case is clear or obvious error, although the
district court did not have the benefit of those decisions at the time of
sentencing. See United States v. Avants, 278 F.3d 510, 521 n.13 (5th Cir. 2002).
      In addition, the error affected Martinez’s substantial rights. Absent the
16-level enhancement, his sentencing range would have been substantially lower
than 57 to 71 months. See Gonzalez-Terrazas, 529 F.3d at 298. Finally, the
sentencing disparity warrants the exercise of our discretion to correct it. See id.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Martinez also
challenges the constitutionality of § 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). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).




                                        2
                               No. 07-50749

     For the foregoing reasons, the sentence imposed by the district court is
VACATED and this matter is REMANDED for resentencing consistent with this
opinion.




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