                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 28, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10260
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SANTOS CUETO-PARRA, also known as Jose Santos Morales, also known
as Santos Cueyo, also known as Santos Cueto Parva, also known as
Angel Rodriguez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 4:04-CR-129-ALL-Y
                      --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Santos Cueto-Parra has appealed the sentence imposed

following entry of his guilty plea to count 1 of an indictment

charging him with illegal re-entry following deportation.       Cueto

challenges the constitutionality of 8 U.S.C. § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must

be proved beyond a reasonable doubt in light of Apprendi v. New


     *
       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this opinion should not be published and is not precedent except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. 05-10260
                                -2-

Jersey, 530 U.S. 466 (2000).   Cueto’s argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).

     Cueto contends that the district court committed reversible

plain error by imposing the 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(i), based on his prior state conviction for

possession of heroin for sale.   “Under the categorical approach

set forth in Taylor v. United States, 495 U.S. 575, 602 (1990), a

district court looks to the elements of a prior offense, rather

than to the facts underlying the conviction, when classifying a

prior offense for sentence enhancement purposes.”   Garza-Lopez,

410 F.3d at 273 (parallel citations to Taylor omitted).

     In the present case, the record reflects that the district

court relied on the presentence report in imposing the 16-level

enhancement.   The probation officer reported that, prior to

deportation, Cueto had been convicted of a drug trafficking

offense in state court.   That is, Cueto was convicted in case

number 97F09448 of possession of heroin for sale.   The probation

officer’s determination that the offense involved drug

trafficking was apparently based on her review of the offense

report only.

     Because the district court’s imposition of the 16-level

enhancement was based on a review of the underlying facts of the

predicate offense only, the district court plainly erred.      See
                           No. 05-10260
                                -3-

id. at 273–75.   In Garza, we held that such error implicated a

defendant’s substantial rights and, accordingly, was reversible.

Id. at 275.   Accordingly, the sentence must be VACATED and the

case REMANDED FOR RESENTENCING.

     VACATED AND REMANDED FOR RESENTENCING.
