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this opinion should not be published and is not precedent except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

June 5, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40087

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DE JESUS CANO-LOPEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:05-CR-713

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

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Jose De Jesus Cano-Lopez is appealing his conviction and 70-

month sentence of imprisonment imposed following his guilty plea

to attempting to illegally reenter the United States following

deportation. Cano-Lopez argues that the district court erred in

enhancing his offense level based on his prior Texas drug

conviction being a drug-trafficking offense within the meaning of

U.S.S.G. § 2L1.2(b)(1)(A)(i). He contends that he was convicted

under a statute that provides that a “delivery” of drugs includes
No. 06-40087

-2-

an “offering to sell,” which is not included in the guidelines

definition of drug-trafficking activity. 

Cano-Lopez did not make this specific argument in the

district court. Thus, review is for plain error. See United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc). The court has determined that a district court plainly

erred in enhancing a defendant’s offense level based on a prior

conviction under a similar Texas statute that also included an

offer to sell a controlled substance within the meaning of a

delivery. United States v. Gonzales, F.3d , No. 05-41221,

2007 WL 1063993 at *1-2 (5th Cir. Mar. 7, 2007). 

The error affected Cano-Lopez’s substantial rights and the

fairness of the proceeding because, in the absence of the error,

his sentencing guidelines range would have been significantly

lower than the sentence that he received. Id. at 2007 WL 1063993

at *3. Cano-Lopez’s sentence is vacated, and the case is

remanded for resentencing.

Cano-Lopez argues, in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), that the 70-month term of imprisonment imposed

in his case exceeds the statutory maximum sentence allowed for

the § 1326(a) offense charged in his indictment. He challenges

the constitutionality of § 1326(b)’s treatment of prior felony

and aggravated felony convictions as sentencing factors rather

than elements of the offense that must be found by a jury. 
No. 06-40087

-3-

Cano-Lopez’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 United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Cano-Lopez

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. 

CONVICTION AFFIRMED, SENTENCE VACATED. REMANDED FOR

RESENTENCING.