* 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 to2

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 felony3

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.