                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 6, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41641
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ALBERTO MORALES-CERNA, also known as Milton Morelas-Serna,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 7:04-CR-601-ALL
                         --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alberto Morales-Cerna (Morales) appeals his guilty-plea

conviction and sentence for illegal reentry.     See 8 U.S.C.

§ 1326(b).     The Government’s “motion for reconsideration of the

motion to supplement the record with documents in possession of

the federal probation officer concerning Morales’s prior North

Carolina state conviction for attempted trafficking in marijuana”

is granted.




     *
       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this opinion should not be published and is not precedent except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. 04-41641
                                 -2-

     Morales’s sentence was increased by 12 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(B) on the basis of his prior North

Carolina conviction for attempting to transport marijuana.     See

N.C. GEN. STAT. §§ 90-95, 90-98 (2001).    Morales argues that this

was a misapplication of the Guidelines.

     A “drug trafficking offense” within the meaning of U.S.S.G.

§ 2L1.2(b)(1) is “an offense under federal, state, or local law

that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance)

or the possession of a controlled substance (or counterfeit

substance) with intent to manufacture, import, export,

distribute, or dispense.”   U.S.S.G. § 2L1.2, comment.

(n.1(B)(iv)) (2003).   North Carolina’s labeling of the offense of

transporting more than 10 pounds of marijuana as “trafficking” is

not controlling.   See Taylor v. United States, 495 U.S. 575, 592

(1990)).   The North Carolina offense does not fall within

U.S.S.G. § 2L1.2's definition of a drug trafficking offense.     See

United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).   Therefore, the 12-level

enhancement was inapplicable.    Morales’s sentence is vacated and

this case is remanded to the district court for resentencing.

     Morales argues that the district court misapplied the

Guidelines when it imposed a two-level enhancement pursuant to

U.S.S.G. § 3C1.1 for obstruction of justice.     The enhancement was

based on Morales’s failure to be truthful about his identity with
                            No. 04-41641
                                 -3-

law enforcement officers and with the probation officer.    The

sentencing transcript indicates that the district court may have

imposed this enhancement on the basis of Morales’s untruthfulness

about his identity in a previous illegal reentry case.    If that

was the case, the enhancement was unwarranted because it applies

only to obstruction of justice in the instant case.    See U.S.S.G.

§ 3C1.1.   Because this case is being remanded for resentencing

based on the district court’s misapplication of U.S.S.G.

§ 2L1.2(b)(1)(B), the district court will have the opportunity to

reexamine the U.S.S.G. § 3C1.1 enhancement to determine its

applicability to this case.

     Morales challenges the constitutionality of 8 U.S.C.

§ 1326(b).    However, Morales’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).    Although Morales 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 Garza-Lopez, 410 F.3d at 276.    Morales 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.

     MOTION FOR RECONSIDERATION OF THE MOTION TO SUPPLEMENT THE

RECORD WITH DOCUMENTS IN POSSESSION OF THE FEDERAL PROBATION
                          No. 04-41641
                               -4-

OFFICER CONCERNING MORALES’ PRIOR NORTH CAROLINA STATE CONVICTION

FOR ATTEMPTED TRAFFICKING IN MARIJUANA GRANTED; CONVICTION

AFFIRMED; SENTENCE VACATED; CASE REMANDED.
