
    UNITED STATES of America, Plaintiff—Appellee v. Carlos Wilmer PALACIOS, also known as Jose Perez Antonio, also known as Jose Maurico Palacio, also as Marcos Rodriguez-Alvarenga, also known as Jose Maurico Palacios, also known as Jesus Enriquez, also known as Carlos Hernandez, also known as Carlos Palacios-Palacios, also known as Marcos Rodriguez, also known as Carlos Wilmer Hernandez, also known as Samuel Rodriguez, also known as Wilmer Palacios, also known as C.W. Palacios, also known as Jose Hernandez Palacio, also known as Jose Antonio Perez, also known as Antonio Rodriguez, Defendant—Appellant.
    No. 06-31200
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 28, 2007.
    U.S. Attorney’s Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.
    Robert F. Barnard, Assistant Federal Public Defender, Federal Public Defender’s Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant.
    
      Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
   PER CURIAM:

Carlos Wilmer Palacios appeals from his guilty-plea conviction and sentence for illegal reentry after deportation from the United States. He argues that the district court erred by relying on the presentence report’s characterization of his prior conviction as a drug trafficking offense to enhance his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(B). As Palacios did not preserve this issue in the court below, we review for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). Plain error exists when “(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Id.

To determine whether a prior conviction qualifies as a drug trafficking offense under § 2L1.2, the court may consider “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “[U]nder Shepard, a district court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for enhancement purposes.” United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.2005).

Because the district court did not have access to any Shepard-approved documents at the time of sentencing, the district court erred in enhancing the sentence. This error was clear and obvious because it conflicts with Shepard. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.2006).

In order to prove the third prong of the plain error test, Palacios must prove that if the district court relied the state court judgment and information at sentencing it would not have enhanced his sentence pursuant to § 2L1.2(b)(1)(B). See Ochoa-Cruz, 442 F.3d at 867. In the instant case, the state court judgment and information are too ambiguous to show whether Palacios was convicted of a drug trafficking offense warranting a 12-level enhancement. Accordingly, it is impossible to determine whether Palacios would have received a lesser sentence if the district court had reviewed these state court records. The proper remedy in such a case is a remand for development of the record and resentencing. See United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.), cert. denied, 546 U.S. 1070, 126 S.Ct. 819, 163 L.Ed.2d 644 (2005).

For these reasons, we vacate Palacios’s sentence and remand for development of the record and resentencing.

VACATED AND REMANDED. 
      
       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.
     