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United States Court of Appeals, Fifth CircuitJun 25, 2007
237 Fed. Appx. 918 (5th Cir. 2007)

No. 06-41101, Summary Calendar.

June 25, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

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

Appeal from the United States District Court for the Southern District of Texas (5:05-CR-2522-ALL).

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

Omar Vasquez appeals his guilty plea conviction and 41-months sentence for illegally reentering the United States after having been previously deported. Vasquez claims the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based upon a determination that his Texas conviction for delivery of a controlled substance was a drug trafficking offense.

Pursuant to our decision in United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007), the district court did err. When a district court misapplies the advisory Guidelines, remand is appropriate unless this court concludes, "on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed". United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007) (internal quotations and citations omitted). Here, any error was harmless because the court stated that, even if it had miscalculated the Guidelines, it would have imposed the same sentence. See id.

Vasquez also challenges the constitutionality of 8 U.S.C. § 1326(b). He concedes his constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) and raises it here only to preserve it for further review.


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