UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus TERRONES-LOPEZ, also known as Jose Jesus Terrones-Vasquez, Defendant-Appellant, 237 F. App'x 920

PER CURIAM: Jose Jesus Terrones-Lopez appeals his sentence for illegal reentry after having been deported, in violation of 8 U.S.C. § 1326(

a) and (b). He was sentenced to 50 months in prison. Terrones contends the district court erred by increasing his base offense level under the advisory Guidelines by 16 levels, having found that his Texas conviction of delivery of cocaine was a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(l)(A)(i). Because Terrones preserved this issue in district court, we review it de novo. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).

The indictment from Terrones’ prior conviction, the only document introduced at sentencing in support of the 16-level increase, stated he “did unlawfully, knowingly and intentionally deliver, to-wit: actually transfer, constructively transfer, and offer to sell a controlled substance”. Despite the pleading’s conjunctive language, the statute is disjunctive, and the jury could have convicted Terrones based only on an offer to sell. United States v. Gonzales, 484 F.3d 712, 715-16 (5th Cir.2007). Offering to sell a controlled substance, however, is not a drug trafficking offense under § 2L1.2.

Id. at 714-15; United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Accordingly, resentencing is required. See Gonzales, 484 F.3d at 715-16. Terrones also challenges the constitutionality of the treatment of prior felony and aggravated felony convictions under 8 U.S.C. § 1326(

b) as sentencing factors rather than elements of the offense that must be found by a jury. Terrones’ 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). Terrones properly concedes this; he raises the issue only to preserve it for further review. CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.