UNITED STATES of America, Plaintiff-Appellee v. Homero TIJERINA-RODRIGUEZ, Defendant-Appellant, 250 F. App'x 656

PER CURIAM: Homero Tijerina-Rodriguez appeals the sentence imposed upon his guilty-plea conviction for illegal reentry following deportation. See 8 U.S.C. § 1326. As the Government concedes, Tijerina’s range of imprisonment under the advisory Guidelines was erroneously calculated because he received criminal history points for a prior conviction too old to be included in the calculation.

Because Tijerina’s 52-month sentence is above the highest sentence under the correct advisory guideline range of 41 to 51 months, and because the district court did not state it was imposing an upward departure or a non-guideline sentence, Tijerina has shown the district court committed reversible plain error. See United States v. Jones, 489 F.3d 679, 681-82 (5th Cir.2007); United States v. Smith, 440 F.3d 704, 707-08 & n. 3 (5th Cir.2006); United States v. Jones, 444 F.3d 430, 438-41 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 2958, 165 L.Ed.2d 970 (2006); United States v.

Villegas, 404 F.3d 355, 364-65 (5th Cir.2005); see also Williams v. United States, 503 U.S. 193, 200, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Accordingly, Tijerina’s sentence is vacated; and this case is remanded to the district court for resentencing. In the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Tijerina challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury.

Our court has held this issue is “fully foreclosed from further debate”. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). 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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.