* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 T EX

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. § 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 convic tion was not for a crime ofviolence (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 ClerkNo. 07-40745

2 that the statute under which he was convicted, T EX

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. § 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 twosections ofthe statute, one section ofwhich satisfied the definition ofgenericburglary, 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. U nited 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. I f that showing is made, we may exercise our discretion to notice the error if it seriously affects the “fairness, integrity, or public reputation ofjudicial proceedings.” I d. (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-c ourt document illuminated under which subsection Sanchez-Vasquez had been convicted. Thus, we cannot determinewhether Sanchez-Vasquez pleaded guilty toan offense that meets the definition ofa genericburglary. SeeUnited Statesv. 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 alsoshown 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 quotationmarks omitted). In the absence of the erroneous 16-level enhancement, SanchezVasquez would have been subject to only an eight-level enhancement for the commission ofan 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 ofNo. 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.