182 F. App'x 355 | 5th Cir. | 2006
Before SMITH, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: [*]
Gilberto Sanchez-Lopez appeals his guilty-plea conviction of, and sentence for, violating 8 U.S.C. § 1326 by being found in the United States without permission after deportation. He challenges the constitutionality of 8 U.S.C. § 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 in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Sanchez- 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). Sanchez-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.
Sanchez-Lopez also argues that the district court erred in im- posing his sentence when it classified his state conviction as a drug trafficking offense that warranted a 12-level enhancement un- der U.S.S.G. § 2L1.2(b)(1)(B). Sanchez-Lopez is correct. North Carolina General Statute § 90-95, the state statute under which Sanchez-Lopez was convicted, is worded so that some, but not all, violations of the statute constitute a drug trafficking offense consistent with the guidelines definition. The offense for which Sanchez-Lopez was convicted, attempted conspiracy to traffic mari- huana by possession, is not a “drug trafficking offense” as that term is defined for purposes of § 2L1.2(b)(1)(B). See Garza-Lopez, 410 F.3d at 273-74; United States v. Gutierrez-Ramirez, 405 F.3d 352, 352-60, cert. denied, 126 S. Ct. 217 (2005); United States v. Rodriguez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003); see also United States v. Meabe-Morales, 165 F. App'x 347, 349 (5th Cir. 2006).
We accordingly VACATE Sanchez-Lopez’s sentence and REMAND for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
NOTES
[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.
