* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41491

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON BARRERA-CASTRO,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(7:05-CR-405-ALL)

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ramon Barrera-Castro appeals his

conviction and sentence for attempting to enter the United States

after deportation in violation of 8 U.S.C. § 1326(a) & (b). He

contends that the district court plainly erred in increasing his

offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1999

and 2002 Texas convictions for possession with intent to deliver a

controlled substance, arguing that his prior offenses do not

constitute drug trafficking offenses. As Barrera-Castro did not

raise this issue in the district court, our review is limited to
2

plain error. See United States v. Green, 324 F.3d 375, 381 (5th

Cir. 2003). Barrera-Castro has two prior Texas convictions for

possession with intent to deliver cocaine in violation TEX. HEALTH

& SAFETY CODE ANN. § 481.112(a)(Vernon 1993), which defines “deliver”

in relevant part to include “offering to sell a controlled

substance, counterfeit substance, or drug paraphernalia.” The

indictments and the judgments concerning these prior Texas

convictions do not provide the specific means of commission of the

offenses, and Barrera-Castro has not admitted such facts. The

district court plainly erred in increasing Barrera-Castro’s offense

level relying solely on the factual narrative in the Presentence

Report. See United States v. Gonzales, __ F.3d __, No. 05-41221,

2007 WL 1063993 at **2-3 (5th Cir. Mar. 7, 2007); see also United

States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied,

126 S. Ct. 298 (2005). The error affected Barrera-Castro’s

substantial rights because, without the 16-level enhancement, his

guidelines sentencing range would have been 37-46 months, much less

than his 63-month sentence. See Gonzales, 2007 WL 1063993 at * 2.

As the error clearly affected Barrera-Castro’s sentence, the error

seriously affected the fairness, integrity, or public reputation of

the judicial proceedings. See id. at *3. Accordingly, BarreraCastro’s sentence is vacated, and the case is remanded for

resentencing in accordance with Gonzales.

Barrera-Castro also challenges the constitutionality of

§ 1326(b)’s treatment of prior felony and aggravated felony
3

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Barrera-Castro’s constitutional

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, we have

repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding. See Garza-Lopez, 410 F.3d at

276. Barrera-Castro 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. BarreraCastro’s conviction is affirmed. 

AFFIRMED IN PART; VACATED AND REMANDED IN PART.