                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                            September 12, 2007
                   FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk

                                No. 06-41297
                              Summary Calendar



UNITED STATES OF AMERICA

                                           Plaintiff-Appellee,

v.

JESUS MARIA GALVAN-LOZANO,
Also Known as Jesus Lozano-Rosales,

                                           Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                              No. 7:06-CR-397-1




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


      Jesus Galvan-Lozano appeals the sentence he received following his guilty-
plea conviction of illegal reentry in violation of 8 U.S.C. § 1326. His constitu-

      *
       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should not be published and is not precedent except under the limited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. 06-41297

tional challenge to § 1326(b) 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), this
court has 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. 2005); see also Rangel-Reyes v. United States, 126 S. Ct. 2873, 2874
(2006).
      We recently held that this issue is “fully foreclosed from further debate.”
United States v. Pineda-Arrellano, 492 F.3d 624, 625-27 (5th Cir. 2007). Galvan-
Lozano properly concedes that his argument is foreclosed in light of Almendarez-
Torres and circuit precedent, but he raises it here to preserve it for further
review.
      Galvan-Lozano additionally renews his argument that the district court
misapplied the sentencing guidelines by characterizing his state felony drug
convictions as “aggravated felonies” for purposes of U.S.S.G. § 2L1.2(b)(1)(C).
In light of Lopez v. Gonzales, 127 S. Ct. 625 (2006), Galvan is correct that his
conviction of simple possession is not an aggravated felony. See United States
v. Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir.), cert. denied, 127 S. Ct. 1845
(2007). Similarly, the conviction of “selling/transporting/offering to sell” a con-
trolled substance under California Health and Safety Code § 11352 is not an ag-
gravated felony. See id.; see also United States v. Guitierrez-Ramirez, 405 F.3d
352, 355 (5th Cir. 2005).
      The government concedes that neither of Galvan’s California drug convic-
tions, standing alone, is an aggravated felony, but the government contends that
the enhancement is nevertheless appropriate because the two convictions can be
considered together as the equivalent of the offense of recidivist possession un-
der 21 U.S.C. § 844(a), which is an aggravated felony under the Controlled Sub-


                                        2
                                 No. 06-41297

stance Act (“CSA”) and therefore also an aggravated felony under the guidelines.
The government has failed to meet its burden of showing beyond a reasonable
doubt that the error was harmless. See United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005); FED. R. CRIM. P. 52(a); see also Neder v. United States, 527
U.S. 1, 15 (1999).
      The government provides no authority from this or any other circuit to
support its assertion that a court of appeals may affirm a § 2L1.2 enhancement
based on drug convictions, which were not individually aggravated felonies, on
the ground that the convictions together are the equivalent of a recidivist pos-
session conviction, an aggravated felony under the CSA. Neither does the gov-
ernment provide record evidence demonstrating beyond a reasonable doubt that
the district court would have imposed the same sentence but for its erroneous
conclusion that the California drug convictions were individual aggravated
felonies.
      The conviction is AFFIRMED. The sentence is VACATED, and this mat-
ter is REMANDED for resentencing.




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