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this opinion should not be published and is not precedent except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

April 17, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41065

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE MANUEL GRADILLA-GONZALEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:05-CR-214-ALL

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

Before KING, WIENER, and DeMOSS, Circuit Judges

PER CURIAM:*

Jorge Manuel Gradilla-Gonzalez (Gradilla) appeals his

conviction and sentence for illegal reentry. Gradilla challenges

the constitutionality of 8 U.S.C. § 1326(b)(1), (2). That issue,

however, is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). Although Gradilla 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
No. 05-41065

-2-

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). Gradilla

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. His conviction is therefore

affirmed.

Gradilla additionally argues for the first time on appeal

that the district court plainly erred when it imposed an eightlevel enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) (2004). 

He contends that the district court erroneously classified his

state drug conviction as an “aggravated felony,” arguing that the

text of the statute of conviction, CAL. HEALTH & SAFETY CODE 

§ 11352(a), is so broad that it covers offenses that are not

punishable under the Controlled Substances Act. 

To classify a prior conviction for purposes of § 2L1.2, a

court may look to both the statutory definition of the offense,

as well as the charging document, any written plea agreement,

transcript of the plea colloquy, and explicit finding admitted by

the defendant. See United States v. Bonilla-Mungia, 422 F.3d

316, 320 (5th Cir. 2005); United States v. Gutierrez-Ramirez, 405

F.3d 352, 359 (5th Cir.), cert. denied, 126 S. Ct. 217 (2005). 

Although Gradilla suggests that there are no state pleadings that

could have been introduced into evidence, he purported to quote

his indictment in his objections to the original presentence
No. 05-41065

-3-

report. The indictment, however, was never made part of the

record. Consequently, we cannot, on the record before us,

resolve the issue raised with legal certainty. See id. at 321. 

Gradilla’s sentence is therefore vacated and the case

remanded to the district court. On remand, the district court

should order that the record be supplemented with the charging

document and any other documents that might establish the

elements to which Gradilla pleaded nolo contendere. Once the

record has been supplemented, the district court should

reconsider whether an eight-level enhancement for an aggravated

felony is warranted.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.