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this opinion should not be published and is not precedent except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

August 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50884

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MANUEL ACOSTA-AVITIA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:04-CR-323-1-PRM

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

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

Jesus Manuel Acosta-Avitia appeals from the sentence imposed

following his guilty-plea conviction for illegal re-entry, in

violation of 8 U.S.C. § 1326.

Acosta argues that the district court erred when it

classified Acosta’s prior conviction as a drug-trafficking

offense that warranted a 16-level offense level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A) (2003); that under Apprendi v. New

Jersey, 530 U.S. 466 (2000), his imprisonment term violated due
No. 04-50884

-2-

process because it exceeded the statutory maximum for the charged

offense; that under United States v. Booker, 125 S. Ct. 738

(2005), the district court plainly erred by increasing the

maximum authorized Guidelines sentence based on facts neither

admitted by him nor found by a jury beyond a reasonable doubt;

and that under Booker, the district court plainly erred when it

sentenced him under a mandatory Guidelines sentencing scheme. 

Because Acosta preserved his objection to the enhancement

before the district court, this court reviews the enhancement de

novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th

Cir. 2004) (en banc), cert. denied, 125 S. Ct. 932 (2005).

In 1988 Acosta was convicted of violating Cal. Health and

Safety Code § 11360(a) (West 1988). This 1988 conviction forms

the basis for the district court’s U.S.S.G. § 2L1.2(b)(1)(A)

enhancement. The language of the California Health and Safety

Code section that Acosta violated is broader than the definition

of “drug trafficking conviction” set forth in the Guidelines and

thus reaches conduct that may not fit the definition of a drug

trafficking conviction. Compare Cal. Health and Safety Code

§ 11360(a) (West 1988), with U.S.S.G. § 2L1.2(b)(1)(A)(i),

comment. (n.1(B)(iv)).

Although the probation department in the Presentence Report

(PSR) set forth facts from which the probation department

concluded that the offense was a drug trafficking offense that

warranted the enhancement, the “district court was not permitted
No. 04-50884

-3-

to rely on the PSR’s characterization of the offense in order to

make its determination of whether it was a drug trafficking

offense.” See United States v. Garza-Lopez, 410 F.3d 268, 273-74

(5th Cir. 2005).

Additionally, under the analysis set forth in this court’s

recent decision of United States v. Gutierrez-Ramirez, 405 F.3d

352 (2005), the documents submitted by the Government do not

provide the requisite information. Neither the indictment nor

the judgment relating to Acosta’s 1988 conviction was provided to

the district court. None of the documents submitted by the

Government are the product of judicial function, such as a

judgment, that “manifests a conscious judicial narrowing of the

charging document rather than a shorthand abbreviation of the

statute of conviction.” See id. at 357-58 (internal quotation

marks omitted). The documents also are not “‘explicit factual

findings by the trial judge to which the defendant assented.’” 

Id. at 359, quoting Shepard v. United States, 125 S. Ct. 1254,

1257 (2005).

At most, the documents submitted by the Government cite the

statute and state that Acosta’s crime was “sale of marijuana.” 

This type of citation and shorthand reference to the statute of

conviction, which encompasses a broader range of conduct than a

drug trafficking conviction as defined in U.S.S.G.

§ 2L1.2(b)(1)(A), is insufficient to support the enhancement. 

See Gutierrez-Ramirez, 405 F.3d at 355, 358-59. Finally, nothing
No. 04-50884

-4-

in the record suggests that the documents submitted by the

Government in Acosta’s case are any more reliable than the

California abstract of judgment that in Gutierrez-Ramirez, 405

F.3d at 358, was found to have a “low level of reliability.”

Thus, the district court erred in imposing the 16-level

enhancement.

Acosta also contends that 8 U.S.C. § 1326(b)(1) and (2),

which provide that a defendant’s sentence may be increased for a

prior “felony” or “aggravated felony,” are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As Acosta

recognizes, this issue is controlled by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Apprendi did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;

see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000). This court does not have the authority to overrule

Almendarez-Torres. See Dabeit, 231 F.3d at 984. This argument

is therefore foreclosed.

Finally, because this court is vacating Acosta’s sentence

due to a misapplication of the then-mandatory Guidelines, it is

not necessary to address Acosta’a Booker claims. See GarzaLopez, 410 F.3d 268, 275 n.2; United States v. Southerland, 405

F.3d 263, 270 (5th Cir. 2005).

We therefore VACATE Acosta’s sentence and REMAND for

resentencing consistent with this opinion and the Supreme Court’s

opinion in Booker.