                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 9, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41767
                         Summary Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

CECILIO BUSTAMANTE-CASTILLO,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:05-CR-1364
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Cecilio Bustamante-Castillo appeals his guilty-plea

conviction and sentence for illegal reentry after deportation.

Bustamante-Castillo received a sentence of 32 months of

imprisonment, which included an enhancement based on 8 U.S.C.

§ 1326(b)(2) because his previous deportation occurred following

an aggravated felony conviction.

     Bustamante-Castillo asserts that his conviction and sentence

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


     *
        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that this opinion should not be published and is not precedent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. 05-41767
                                -2-

466 (2000), because 1) § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

offense elements is unconstitutional and 2) neither his

indictment nor plea colloquy indicated that his previous

deportation had occurred following an aggravated felony

conviction.

     Bustamante-Castillo’s 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).   Bustamante-Castillo 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.

     Bustamante-Castillo also contends that his sentence should

be vacated because the district court committed reversible plain

error by assessing three criminal history points under U.S.S.G.

§ 4A1.1(a) and (b) for his 1996 possession of marijuana

conviction, which carried a 12-month sentence.   Because

Bustamante-Castillo did not raise this issue in the district

court, we review it for plain error.   See United States v.
                            No. 05-41767
                                 -3-

Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006), cert. denied,

126 S. Ct. 2309 (2006).    Under the plain-error standard of

review, “reversal is not required unless there is (1) an error;

(2) that is clear or plain; (3) that affects the defendant’s

substantial rights; and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”       United

States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).

       According to the Sentencing Guidelines, three criminal

history points are assigned for each prior sentence of

imprisonment exceeding 13 months, and two criminal history points

are assigned for each prior sentence of imprisonment that is at

least 60 days but 13 months or less.    See U.S.S.G. § 4A1.1(a),

(b).    Because Bustamante-Castillo’s 1996 marijuana possession

conviction carried a 12-month sentence, it should have been

assigned only two criminal history points.    See id.

       The assignment of three criminal history points in this

instance was erroneous, plainly contrary to the provisions of

§ 4A1.1(a) and (b), and detrimental to Bustamante-Castillo’s

substantial rights in that it incorrectly inflated his sentencing

guidelines range.    “Generally, when a trial court incorrectly

applies the United States Sentencing Guidelines, as it did here,

the fairness, integrity, or public reputation of judicial

proceedings is seriously affected.”    United States v. Alarcon,

261 F.3d 416, 424 (5th Cir. 2001).    Accordingly, this error
                          No. 05-41767
                               -4-

requires that Bustamante-Castillo’s sentence be vacated and his

case remanded for resentencing in accordance with this opinion.

     Because vacating and remanding Bustamante-Castillo’s

sentence is necessary based on this error alone, we do not reach

Bustamante-Castillo’s remaining sentencing issues.   See United

States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

Bustamante-Castillo’s motion to summarily affirm the judgment in

part, vacate the judgment in part, and remand for resentencing is

denied as unnecessary.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED; MOTION

DENIED AS UNNECESSARY.
