UNITED STATES of America, Plaintiff-Appellee, v. Pedro GRANDE-DORANTES, Defendant-Appellant, 243 F. App'x 12

PER CURIAM: Pedro Grande-Dorantes appeals, on two bases, his sentence following a guilty-plea conviction for illegal reentry following deportation. First, he contends the district court erred by enhancing his sentence pursuant to advisory Guidelines § 2L1.2(b)(l)(B), based on the court’s finding he was previously deported after a conviction for a felony drug-trafficking offense. Grande-Dorantes contends his prior Texas conviction for possession with intent to deliver cocaine is not a drug-trafficking offense under § 2L1.2(b)(l)(

B) because Texas Health and Safety Code § 481.112(

a) defines a “delivery” to include an “offer to sell,” which is not punishable under the Controlled Substances Act. Because Grande-Dorantes challenged this sentencing enhancement in the district court, we review the district court’s application of the advisory Guidelines de novo; its factual findings for clear error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Villanueva, 408 F.3d 193, 203 & n. 9 (5th Cir.), cert. denied, 546 U.S. 910, 126 S.Ct. 268, 163 L.Ed.2d 241 (2005).

At sentencing, the Government submitted state-court records establishing that Grande-Dorantes stipulated to possessing cocaine with the intent to distribute it. Because Grande-Dorantes stipulated to conduct which constitutes a drug-trafficking offense under § 2L1.2, the district court did not err in enhancing his sentence. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied, 546 U.S. 919, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005).

Grande-Dorantes also asserts that the felony and aggravated felony provisions of 8 U.S.C. § 1326(

b) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and subsequent Supreme Court decisions. This 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). Grande-Dorantes properly concedes this; he raises the issue here to preserve it for further review. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.