* 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. 07-40745

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ADAN SANCHEZ-VASQUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-261-1

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Adan Sanchez-Vasquez pleaded guilty to violating 8 U.S.C. § 1326 by

illegally reentering the United States following deportation. After enhancing his

offense level by 16 levels because of his prior conviction under TEX.PENAL CODE

ANN. § 30.02(a) for burglary of a habitation, the district court sentenced

Sanchez-Vasquez to serve 75 months in prison.

On appeal Sanchez-Vasquez contends that his burglary conviction was not

for a crime of violence (COV) within the meaning of U.S.S.G. § 2L1.2. He argues

United States Court of Appeals

Fifth Circuit

F I L E D

June 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-40745

2

thatthe statute under which he was convicted, TEX.PENALCODE ANN. § 30.02(a)

includes a means to commit the offense that does not meet the definition of a

generic burglary as required by the Guidelines to impose such an enhancement.

Sanchez-Vasque also asserts that although the indictment charged him

conjunctively under two sections ofthe statute, one section of which satisfied the

definition of generic burglary, his guilty plea did not establish that he committed

the conduct under that section.

Because Sanchez-Vasquez did not raise this issue below, we review for

plain error. United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To

show plain error, Sanchez-Vasquez must show that there was an error that was

clear and obvious and affected his substantial rights. See id. If that showing is

made, we may exercise our discretion to notice the error if it seriously affects the

“fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted).

The indictment charging Sanchez-Vasquez tracked both § 30.02(a)(1) and

§ 30.02(a)(3), but neither it nor any other state-court document illuminated

under which subsection Sanchez-Vasquez had been convicted. Thus, we cannot

determine whether Sanchez-Vasquez pleaded guilty to an offense that meets the

definition of a generic burglary. See UnitedStates v. Morales-Martinez, 496 F.3d

356, 359-60 (5th Cir. 2007). Accordingly, we hold that the district court plainly

erred in imposing a 16-level sentencing enhancement.

Sanchez-Vasquez has also shown that his substantial rights were affected

because there is “a reasonable probability that, but for the district court’s

misapplication of the Guidelines, [he] would have received a lesser sentence.”

United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (internal quotation

marks omitted). In the absence of the erroneous 16-level enhancement, SanchezVasquez would have been subject to only an eight-level enhancement for the

commission of an aggravated felony. See § 2L1.2(b)(1)(C). His total offense level

would have been reduced from 21 to 13, and, with a criminal history category of
No. 07-40745

3

V, his guidelines range would have been reduced to 30 to 37 months,

significantly lower than the 75-month sentence imposed. Thus, SanchezVasquez has shown that the district court’s error resulted in a substantially

different sentence and affected the fairness of the judicial proceeding. See

Gonzales, 484 F.3d at 716. Consequently, we must vacate Sanchez-Vasquez’s

sentence and remand for resentencing.

Sanchez-Vasquez also maintains the "felony" and "aggravated felony"

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8

U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.

United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for

cert. filed, (Aug. 28, 2007) (No. 07-6202).

AFFIRMED IN PART; VACATED IN PART; REMANDED FOR

RESENTENCING.