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should not be published and is not precedent except under the limited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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50749

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 25, 2008

Charles R. Fulbruge III

Clerk
No. 07-50749

2

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 UnitedStates 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; OrtegaGonzaga, 490 F.3d at 396 n.5. Pursuant to Ortega-Gonzaga and GonzalezTerrazas, 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).
No. 07-50749

3

For the foregoing reasons, the sentence imposed by the district court is

VACATED and this matter is REMANDED for resentencing consistent with this

opinion.