United States v. Contreras-Navarro

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 8, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40782
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1130-ALL
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lucio Contreras-Navarro (Contreras) appeals the 27 month
sentence imposed following 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
(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

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No. 06-40782
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increased his offense level by eight pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C).
Contreras’s challenge to § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (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 concedes, Contreras’s argument has merit in light of
the Supreme Court’s recent decision in Lopez v. Gonzales, 127
S. Ct. 625 (2006). See United States v. Estrada-Mendoza, 475
F.3d 258, 259-61 (5th Cir.), cert. denied, 127 S. Ct. 1845
(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.

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