United States v. Meabe-Morales , 165 F. App'x 347 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-50255
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO MEABE-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-523-ALL-AML
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Humberto Meabe-Morales challenges his sentence imposed
following his guilty plea to being unlawfully present in the
United States following deportation, a violation of 8 U.S.C.
§ 1326.
Meabe-Morales argues that, because the indictment did not
allege that he had a prior felony or aggravated felony
conviction, it charged only an offense under 8 U.S.C. § 1326(a)
for which the maximum penalty is two years of imprisonment. He
*
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this opinion should not be published and is not precedent except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.
No. 05-50255
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argues that his 46-month sentence under 8 U.S.C. § 1326(b)
violates his constitutional right to due process. This argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Meabe-Morales contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), 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). Meabe-
Morales 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.
Meabe-Morales also argues that the district court erred by
determining that he had a prior “drug trafficking offense” and
thereby enhancing his base offense level by 16 levels. Under
U.S.S.G. § 2L1.2(b)(1)(A)(i) (2004), the offense level for
unlawfully entering or remaining in the United States is
increased 16 levels if the defendant was deported or removed
previously after being convicted of a felony drug trafficking
offense that resulted in a sentence of 13 or more months of
imprisonment. For the purpose of this enhancement, a “drug
trafficking offense” is defined as “an offense under federal,
state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or
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a counterfeit substance) or the possession of a controlled
substance (or counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.” U.S.S.G. § 2L1.2,
comment. (n.1(B)(iv)) (2004). Meabe-Morales’s sentence was
enhanced was based on his prior North Carolina conviction for the
felony offense of “trafficking in marijuana” by transporting in
excess of 10 pounds of marijuana, under N.C. GEN. STAT.
§ 90-95(h)(1) (2001). The state’s label of the offense of
transporting more than 10 pounds of marijuana as “trafficking” is
not controlling. See Taylor v. United States, 495 U.S. 575, 592
(1990). This offense does not fall within § 2L1.2's definition
of a drug trafficking offense. See Garza-Lopez, 410 F.3d at 273.
Without that conviction, the 16-level enhancement is
inapplicable. We accordingly VACATE Meabe-Morales’s sentence and
REMAND to the district court for re-sentencing.