United States v. Morales-Cerna

* 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this opinion should not be published and is not precedent except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 6, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41641
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO MORALES-CERNA, also known as Milton Morelas-Serna,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-601-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alberto Morales-Cerna (Morales) appeals his guilty-plea
conviction and sentence for illegal reentry. See 8 U.S.C.
§ 1326(b). The Government’s “motion for reconsideration of the
motion to supplement the record with documents in possession of
the federal probation officer concerning Morales’s prior North
Carolina state conviction for attempted trafficking in marijuana”
is granted.

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Morales’s sentence was increased by 12 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(B) on the basis of his prior North
Carolina conviction for attempting to transport marijuana. See
N.C. GEN. STAT. §§ 90-95, 90-98 (2001). Morales argues that this
was a misapplication of the Guidelines.
A “drug trafficking offense” within the meaning of U.S.S.G.
§ 2L1.2(b)(1) is “an offense under federal, state, or local law
that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance)
or the possession of a controlled substance (or counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 2L1.2, comment.
(n.1(B)(iv)) (2003). North Carolina’s labeling of the offense of
transporting more than 10 pounds of marijuana as “trafficking” is
not controlling. See Taylor v. United States, 495 U.S. 575, 592
(1990)). The North Carolina offense does not fall within
U.S.S.G. § 2L1.2's definition of a drug trafficking offense. See
United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Therefore, the 12-level
enhancement was inapplicable. Morales’s sentence is vacated and
this case is remanded to the district court for resentencing.
Morales argues that the district court misapplied the
Guidelines when it imposed a two-level enhancement pursuant to
U.S.S.G. § 3C1.1 for obstruction of justice. The enhancement was
based on Morales’s failure to be truthful about his identity with

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law enforcement officers and with the probation officer. The
sentencing transcript indicates that the district court may have
imposed this enhancement on the basis of Morales’s untruthfulness
about his identity in a previous illegal reentry case. If that
was the case, the enhancement was unwarranted because it applies
only to obstruction of justice in the instant case. See U.S.S.G.
§ 3C1.1. Because this case is being remanded for resentencing
based on the district court’s misapplication of U.S.S.G.
§ 2L1.2(b)(1)(B), the district court will have the opportunity to
reexamine the U.S.S.G. § 3C1.1 enhancement to determine its
applicability to this case.
Morales challenges the constitutionality of 8 U.S.C.
§ 1326(b). However, Morales’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Morales contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
See Garza-Lopez, 410 F.3d at 276. Morales 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.
MOTION FOR RECONSIDERATION OF THE MOTION TO SUPPLEMENT THE
RECORD WITH DOCUMENTS IN POSSESSION OF THE FEDERAL PROBATION

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No. 04-41641
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OFFICER CONCERNING MORALES’ PRIOR NORTH CAROLINA STATE CONVICTION
FOR ATTEMPTED TRAFFICKING IN MARIJUANA GRANTED; CONVICTION
AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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