                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                 F I L E D
                       REVISED JULY 15, 2005
               IN THE UNITED STATES COURT OF APPEALS             May 19, 2005

                        FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                   Clerk
                         ____________________

                             No. 03-41750
                         ____________________


UNITED STATES OF AMERICA

                Plaintiff - Appellee

v.

OSCAR GARZA-LOPEZ

               Defendant - Appellant
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, McAllen
_________________________________________________________________

Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

     Defendant-Appellant Oscar Garza-Lopez pled guilty to being

knowingly and unlawfully present in the United States following

deportation, in violation of 8 U.S.C. § 1326(a) and (b).          At

sentencing, the district court increased his offense level by

sixteen points pursuant to UNITED STATES SENTENCING GUIDELINES

(“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) (2003), which authorizes an

enhancement if the defendant previously was convicted of a “drug

trafficking offense” for which the sentence exceeded thirteen

months.   Garza-Lopez now appeals his sentence of seventy-seven

months, arguing: (1) the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional; (2) the

district court erred by enhancing his sentence under

§ 2L1.2(b)(1)(A)(i); and (3) the district court erred by

sentencing him under the mandatory guidelines regime held to be

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005).   For the following reasons, we VACATE and REMAND Garza-

Lopez’s sentence.

                I.   Factual and Procedural Background

     On February 19, 2003, Garza-Lopez was deported from the

United States to Mexico.    On July 27, 2001, prior to his

deportation, he was convicted in the Superior Court of

California, Kern County, Bakersfield, of transporting/selling a

controlled substance, namely methamphetamine, under CAL. HEALTH &

SAFETY CODE § 11379(a).   Garza-Lopez was sentenced to three years

imprisonment for this offense.

     On July 15, 2003, Border Patrol agents found Garza-Lopez at

the Hidalgo County Jail in Edinburg, Texas.    Because he had not

previously obtained permission to re-enter the United States

after being deported in February of 2003, he was indicted with

being illegally present in the United States.    He pled guilty to

this charge.

     On December 11, 2003, the district court sentenced Garza-

Lopez.    In the Presentence Report (the “PSR”), which applied the

2003 edition of the Guidelines Manual, the probation officer



                                   2
scored Garza-Lopez at a base offense level of eight.      He then

increased his offense level by sixteen points pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(i), which authorizes a sixteen-point

enhancement if the defendant has been convicted of a prior “drug

trafficking offense” for which the sentence imposed exceeded

thirteen months.   The PSR stated that the basis for this

enhancement was Garza-Lopez’s 2001 conviction under CAL. HEALTH &

SAFETY CODE § 11379(a).

      At sentencing, the district court granted a two-level

reduction in Garza-Lopez’s offense level for timely acceptance of

responsibility.    The government requested an upward departure for

under-representation of Garza-Lopez’s criminal history and an

additional one-level reduction for timely acceptance of

responsibility.    Garza-Lopez objected to the upward departure and

moved for a downward departure.    The district court granted the

request for an additional one-level downward departure for

acceptance of responsibility, and it denied the government’s

request for an upward departure.       The district court then adopted

the revised PSR (including the sixteen-level enhancement for

Garza-Lopez’s “drug trafficking” conviction under § 11379(a)),

and it concluded that Garza-Lopez’s criminal history category was

VI.   Accordingly, the punishment range under the Sentencing

Guidelines was seventy-seven to ninety-six months.      The district

court sentenced Garza-Lopez to seventy-seven months, the low end

of the applicable range, to be followed by a two-year term of

                                   3
supervised release.     The court also imposed a $100 special

assessment.

     On December 17, 2003, Garza-Lopez filed a timely notice of

appeal of his sentence.     In his original appellate brief, he

raised only one issue:     whether the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.

The government responded by moving for summary affirmance.      On

June 16, 2004, before this court ruled on the motion for summary

affirmance, Garza-Lopez moved for leave to file a supplemental

brief.   The court granted Garza-Lopez’s motion.     As a result,

Garza-Lopez filed a supplemental brief in which he argued that

the district court erred when it imposed the sixteen-level

enhancement under § 2L1.2(b)(1)(A)(i) on the basis of his prior

conviction under § 11379(a).       Garza-Lopez also filed an unopposed

motion to supplement the record, requesting permission to include

in the record the state court charging instrument for his

conviction under § 11379(a), which this court granted.      Finally,

on February 16, 2005, Garza-Lopez, with the permission of this

court, filed a supplemental letter brief addressing the effect of

Booker on his appeal.

                             II.    ANALYSIS

A.   The Sixteen-Level Enhancement

     Garza-Lopez argues that the district court committed plain

error by enhancing his sentence by sixteen levels on the basis of


                                     4
his 2001 conviction under § 11379(a).     According to Garza-Lopez,

§ 11379(a) criminalizes a variety of conduct, including acts that

cannot form the basis for a sentencing enhancement under §

2L1.2(b)(1)(A)(i).

     Garza-Lopez states that under § 2L1.2(b)(1)(A)(i) of the

Sentencing Guidelines, a defendant’s offense level is increased

by sixteen levels if he has previously been convicted of a “drug

trafficking offense for which the sentence imposed exceeded 13

months.”     The Sentencing Guidelines define a “drug trafficking

offense” as:

     [A]n offense under federal, state, or local law that
     prohibits the manufacture, import, export, distribution,
     or dispensing of a controlled substance (or a counterfeit
     substance) or the possession of a controlled substance
     (or a counterfeit substance) with intent to manufacture,
     import, export, distribute, or dispense.

U.S.S.G. § 2L1.2, Application Note 1(B)(iv).     As Garza-Lopez

notes, in the present case, the PSR stated that Garza-Lopez had

been convicted of such a “drug trafficking offense,” namely the

offense of “[t]ransport/sell methamphetamine” under § 11379(a).

Garza-Lopez argues that the district court erred because it

relied on the PSR and because the language of § 11379(a) was too

broad to establish that he had committed a “drug trafficking

offense.”1    In support of this claim, Garza-Lopez cites United

     1
          Garza-Lopez also argues that the language of the
California charging document simply tracks the language of
§ 11379(a). Thus, he contends that even if the district court had
examined the charging document, it could not have concluded that he
committed a “drug trafficking offense.” On June 17, 2004, Garza-

                                   5
States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), in which

the Ninth Circuit held, in a case with similar facts, that

“§ 11379(a) was too broad to establish a predicate offense

justifying the [sixteen]-level enhancement.”       Id.   Garza-Lopez

argues that this court should follow the logic of the Ninth

Circuit’s decision in Navidad-Marcos and hold that the district

court erred in enhancing his offense level by sixteen levels

because § 11379(a) is too broad to have permitted an enhancement

under U.S.S.G. § 2L1.2(b)(1)(A).       He further argues that the

district court’s error affected his substantial rights because,

absent the sixteen-level enhancement, he would have been facing

an imprisonment range of only thirty-three to forty-one months.

     Because Garza-Lopez did not object below to the district

court’s imposition of the sixteen-level increase, this court

reviews the district court’s imposition of the enhancement for

plain error.     See United States v. Villegas, No. 03-21220, 2005

WL 627963, at *2 (5th Cir. Mar. 17, 2005).       This court finds

plain error when: (1) there was an error; (2) the error was clear

and obvious; and (3) the error affected the defendant’s

substantial rights.    Id.; United States v. Olano, 507 U.S. 725,

732-37 (1993).    When these three conditions are all met, this

court may exercise its discretion to correct the error only if


Lopez filed a motion to supplement the record with a copy of the
California charging document. The government did not oppose this
motion, which this court granted.     Accordingly, the charging
document is now part of the record.

                                   6
the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”    United States v. Mares, No.

03-21035, 2005 WL 503715, at *8 (5th Cir. Mar. 4, 2005) (quoting

United States v. Cotton, 535 U.S. 625, 631 (2002)).

       In reviewing Garza-Lopez’s claim of plain error, we begin by

determining whether the district court committed an error and

whether that error was plain.    Villegas, 2005 WL 627963, at *2-5.

In resolving Garza-Lopez’s claim that the district court erred by

misapplying § 2L1.2(b)(1)(A), we review the district court’s

interpretation and application of the Guidelines de novo.    Id.

       Under the categorical approach set forth in United States v.

Taylor, 495 U.S. 575, 602 (1990), a district court looks to the

elements of a prior offense, rather than to the facts underlying

the conviction, when classifying a prior offense for sentence

enhancement purposes.    See also United States v. Gracia-Cantu,

302 F.3d 308, 309 (5th Cir. 2002).    In a “narrow range of cases,”

however, a district court may look beyond the elements of the

offense when making such a determination.    Taylor, 495 U.S. at

602.    In such cases, courts are not free to consider any facts,

but may consider the statutory definition of the offense, the

charging paper, and the jury instructions.    See United States v.

Allen, 282 F.3d 339, 343 (5th Cir. 2002) (citing Taylor, 495 U.S.

at 601).    This court has held that the determination of whether a

“drug trafficking offense” was committed falls into the narrow

range of cases where the court may consider information other

                                  7
than the statutory definition of the offense.    United States v.

Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir. 2003) (“We

therefore decline to extend the Gracia-Cantu categorical approach

to § 2L1.2(b)(1)(A)(i).”).   Thus, courts making such a

determination may consider the statutory definition of the

predicate offense, the charging paper, and the jury instructions.

See id. at 617; Allen, 282 F.3d at 343.

     In the present case, the district court did not have the

state court charging document or the jury instructions before it

when it sentenced Garza-Lopez.   All that it had before it was the

PSR prepared by the probation officer.    In the PSR, the probation

officer categorized Garza-Lopez’s 2001 conviction as

“Transport/sell methamphetamine; Superior Court of Kern County,

Bakersfield, California; Cause No. BF095698A.”   The probation

officer then provided the following narrative of the facts

underlying this offense:

     According to the Kern County, California, Sheriff’s
     Department, on July 12, 2001, deputies received
     confidential information indicating that the defendant
     was in the process of transporting approximately two
     ounces of methamphetamine from a motel room he was
     staying at to a local market. Surveillance was
     established . . . . The deputies followed the
     defendant to a local market, where the defendant parked
     the vehicle. After the deputies made contact with the
     defendant, a search of the vehicle was conducted, which
     led to the seizure of 1.97 ounces of methamphetamine
     wrapped in a washcloth on the floorboard.
     Consequently, the defendant was placed under arrest.
     The defendant later admitted that he was going to sell
     the methamphetamine to a female, whom he refused to
     identify. A further search of the defendant’s motel
     room led to the seizure of approximately 62.3 grams of

                                 8
     methamphetamine. The defendant also was charged in
     Count 2 with possession of a controlled substance for
     sale, which was dismissed in the furtherance of
     justice.

The probation officer recommended a sixteen-level enhancement

pursuant to § 2L1.2(b)(1)(A)(i) on the basis of this information,

but he did not state from where he obtained this factual

information about Garza-Lopez’s conviction.

     While the probation officer’s factual narrative in the PSR

suggests that Garza-Lopez was convicted of a “drug trafficking

offense,” the district court was not permitted to rely on the

PSR’s characterization of the offense in order to make its

determination of whether it was a “drug trafficking offense.”

In Shepard v. United States, 125 S. Ct. 1254, 1257, 1259-61

(2005), the Supreme Court rejected an expansive reading of Taylor

that would permit courts to examine documents other than

conclusive records made or used in adjudicating guilt when

characterizing a sentence for enhancement purposes.   Accordingly,

it held that the district court in Shepard was limited to

examining “the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented.”   Id. at 1257.   Thus, under Shepard, a district court

is not permitted to rely on a PSR’s characterization of a

defendant’s prior offense for enhancement purposes.   Similarly,

in United States v. Gutierrez-Ramirez, No. 03-41742, 2005 WL


                                  9
762664, at *1 (5th Cir. Apr. 5, 2005), the PSR recommended a

sixteen-level increase for the commission of a prior “drug

trafficking offense.”    The district court, after examining the

abstract of judgment, granted the increase.      On appeal, the

government, arguing that the sentence should be affirmed, stated

that under Rodriguez-Duberney, the court “may look to sources

such as the PSR for the underlying facts of the prior

conviction.”   Id. at *2.    This court rejected the government’s

argument, holding that Rodriguez-Duberney “did not authorize

reference to a source other than the indictment to determine

whether the prior conviction could be classified as a ‘drug

trafficking offense.’”      Id. at *3.   Accordingly, this court held

that the district court erred, and it vacated and remanded the

defendant’s sentence.    Id. at *3-6.    Likewise, in a recent

unpublished case nearly identical to the present one, United

States v. Gonzalez-Borjas, No. 04-40238, 2005 WL 629822, at *1-3

(5th Cir. Mar. 18, 2005) (per curiam) (unpublished), this court

found that the district court had committed plain error when it

imposed a sixteen-level enhancement for committing a “drug

trafficking offense.”    In Gonzalez-Borjas, the district court

adopted the PSR’s characterization of the defendant’s sentence as

a “drug trafficking offense.”     This court reversed the

defendant’s sentence, holding that the district court had

committed plain error when finding that the defendant had

committed a “drug trafficking offense.”       Gonzalez-Borjas, 2005 WL

                                   10
629822, at *1-3; see also United States v. Martinez-Cortez, 988

F.2d 1408, 1451-17 (5th Cir. 1993) (holding that the district

court’s reliance on the PSR to characterize the defendant’s prior

offense for enhancement purposes was error); Navidad-Marcos, 367

F.3d at 907-09 (holding that the district court erred when it

relied on the PSR and the abstract of judgment when imposing a

sixteen-level enhancement for committing a “drug trafficking

offense”).

     As for the statutory definition of § 11379(a), on which the

district court could properly rely, it encompasses activity that

does not fall within the definition of “drug trafficking offense”

under § 2L1.2.   See Navidad-Marcos, 367 F.3d at 907.     For

instance, § 11379(a) criminalizes the transportation of a

controlled substance for personal use and offers to transport,

sell, furnish, administer, or give away a controlled substance.

CAL. HEALTH & SAFETY CODE § 11379(a).   None of these acts fall

within the definition of “drug trafficking offense” under

§ 2L1.2, which covers only the manufacture, import, export,

distribution, or dispensing of a controlled substance (or

possession with the intent to do any of these things).      See

U.S.S.G. § 2L1.2, Application Note 1(B)(iv).      Accordingly, the

district court could not have found that Garza-Lopez was

convicted of a “drug trafficking offense” solely by looking at

the language of § 11379(a) because it was overbroad.      Because the

district court did not have before it the charging document or

                                   11
jury instructions for Garza-Lopez’s 2001 conviction, it had

nothing proper to rely on that proved that Garza-Lopez was

convicted of a “drug trafficking offense.”    Accordingly, the

district court erred when it found that Garza-Lopez was convicted

of a “drug trafficking offense.”

       With respect to the second prong of the plain-error test, an

error is plain if it is “clear” or “obvious.”     Olano, 507 U.S. at

734.    As the Supreme Court held in Johnson v. United States, 520

U.S. 461, 467-68 (1997), “it is enough that the error be ‘plain’

at the time of appellate consideration.”    As discussed above,

several recent cases have made it clear that the district court’s

reliance on the PSR was error.     See, e.g., Shepard, 125 S. Ct. at

1257, 1259-61; Gutierrez-Ramirez, 2005 WL 762664, at *1-3;

Gonzalez-Borjas, 2005 WL 629822, at *1-3.    Accordingly, the

district court’s error was plain.

       With respect to the third and fourth prongs of the plain-

error test, we must determine “whether the defendant can show a

reasonable probability that, but for the district court’s

misapplication of the Guidelines, [the defendant] would have

received a lesser sentence.”     Villegas, 2005 WL 627963, at *7.

In Villegas, the court stated that absent the enhancement, the

defendant’s “sentencing range would have been reduced from

between twenty-one and twenty-seven months to between ten and

sixteen months.”    Id. at *7.   It then held that “[b]ecause these

two sentencing ranges do not overlap, the district court’s error

                                  12
necessarily increased [the defendant’s] sentence and thus

affected his substantial rights.”    Id.; see also United States v.

Insaulgarat, 378 F.3d 456, 468 n. 17 (5th Cir. 2004) (holding

that because the district court’s error resulted in the

imposition of a sentence substantially greater than the maximum

otherwise permitted under the Sentencing Guidelines, the error

affected the defendant’s substantial rights and the fairness of

the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same).

In the present case, without the sixteen-level enhancement for

committing a “drug trafficking offense,” Garza-Lopez’s adjusted

base offense level would have been at most thirteen, and his

sentencing range would have been at most thirty-three to forty-

one months, far less than the seventy-seven month sentence he

received.   Thus, the district court’s error in the present case

resulted in the imposition of a sentence that was substantially

greater than would otherwise have been permitted under the

Sentencing Guidelines, thereby affecting Garza-Lopez’s

substantial rights and the fairness of the judicial proceedings.

See, e.g., Villegas, 2005 WL 627963, at *7; Insaulgarat, 378 F.3d

at 468 n.17; Gracia-Cantu, 302 F.3d at 312.   Accordingly, we

conclude that the district court committed plain error when it

imposed the sixteen-level sentence enhancement, and we vacate

Garza-Lopez’s sentence and remand for resentencing.2   See

     2
          Because we vacate Garza-Lopez’s sentence, we need not
address his argument that the district court committed error under

                                13
Villegas, 2005 WL 627963, at *7.

B.   The Constitutionality of 8 U.S.C. § 1326(b)

     Garza-Lopez next argues that 8 U.S.C. §§ 1326(b)(1) and (2)

are unconstitutional on their face and as applied in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).3   According to

Garza-Lopez, the “felony” and “aggravated felony” provisions

found in these sections are essential elements of the offense

that must be pled in the indictment and proved beyond a

reasonable doubt, not sentencing enhancement factors that a judge

should determine.   He notes that in Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), the Supreme Court rejected this

argument, holding that “Congress intended to set forth a

sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and



Booker by sentencing him under a mandatory guidelines regime.
     3
          8 U.S.C. §§ 1326(b)(1) and (2) state:

     (b) Criminal penalties for reentry of certain removed
     aliens

     Notwithstanding subsection (a) of this section, in the
     case of any alien described in such subsection--

     (1) whose removal was subsequent to a conviction for
     commission of three or more misdemeanors involving drugs,
     crimes against the person, or both, or a felony (other
     than an aggravated felony), such alien shall be fined
     under Title 18, imprisoned not more than 10 years, or
     both;

     (2) whose removal was subsequent to a conviction for
     commission of an aggravated felony, such alien shall be
     fined under such Title, imprisoned not more than 20
     years, or both . . . .

                                14
not a separate criminal offense.”       Nevertheless, he argues that

in light of Apprendi, there is reason to think that Almendarez-

Torres was wrongly decided.      While Garza-Lopez thinks there is

reason to believe Almendarez-Torres was wrongly decided, he

admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1)

and (2) are unconstitutional is foreclosed in this circuit by

Almendarez-Torrez.   He then states that he is simply raising this

argument on appeal to preserve it for possible review by the

Supreme Court.

     Because Garza-Lopez made no objection to the alleged

constitutional error below, we review it for plain error.

United States v. Knowles, 29 F.3d 947, 951 (5th Cir. 1994).       This

court has held that “[i]t is self-evident that basing a

conviction on an unconstitutional statute is both ‘plain’ and

‘error’ . . . .”   Id. at 951.

     Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are

unconstitutional after Apprendi fails in light of Almendarez-

Torres and Fifth Circuit precedent.      As Garza-Lopez readily

admits, in Almendarez-Torres, the Supreme Court effectively

rejected his argument.     See Almendarez-Torres, 523 U.S. at 235.

Furthermore, Apprendi did not overrule Almendarez-Torres.

Instead, the Supreme Court stated in Apprendi that “we need not

revisit [Almendarez-Torres] for purposes of our decision today to

treat the case as a narrow exception to the general rule we

recalled at the outset.”    Apprendi, 530 U.S. at 490.     This court

                                   15
has repeatedly rejected arguments like the one made by Garza-

Lopez and has held that Almendarez-Torres remains binding despite

Apprendi.   See, e.g., United States v. Mendez-Villa, 346 F.3d

568, 570-71 (5th Cir. 2003) (per curiam); United States v.

Delgado-Nunez, 295 F.3d 494, 498 (5th Cir. 2002).   Accordingly,

Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are

unconstitutional in light of Apprendi fails.

                         III.   CONCLUSION

     For the foregoing reasons, we VACATE Garza-Lopez’s sentence

and REMAND for resentencing consistent with this opinion.




                                 16
