236 F. App'x 941

UNITED STATES of America, Plaintiff-Appellee, v. Lucio CONTRERAS-NAVARRO, also known as Julien Chapa, also known as Julien Chappa, also known as Jose Ignacio Chappa, also known as Luccio Contreras, Defendant-Appellant.

No. 06-40782

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 8, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM: *

Lucio Contreras-Navarro (Contreras) appeals the 27 month sentence imposed *942following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He argues that the “felony” and “aggravated felony” provisions of § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also argues that the district court erroneously characterized his prior state conviction for transportation/sale of a controlled substance as an aggravated felony, which increased his offense level by eight pursuant to U.S.S.G. § 2L1.2(b)(l)(C).

Contreras’s challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Contreras 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.2005). Contreras 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.

We review Contreras’s challenge to the district court’s application of the Sentencing Guidelines de novo. See United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir. 2005). As the Government concédes, Contreras’s argument has merit in light of the Supreme Court’s recent decision in Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). See United States v. Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir.), cert. denied, — U.S. -, 127 S.Ct. 1845, 167 L.Ed.2d 340 (2007). Accordingly, Contreras’s sentence is vacated, and the case is remanded for resentencing in light of Lopez.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

United States v. Contreras-Navarro
236 F. App'x 941

Case Details

Name
United States v. Contreras-Navarro
Decision Date
Jun 8, 2007
Citations

236 F. App'x 941

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!