United States v. Campos-Cruz , 209 F. App'x 422 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-51740
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO CAMPOS-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-252
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Antonio Campos-Cruz appeals his guilty plea conviction for
being found illegally in the United States and the sentence
imposed following a remand and resentencing to a term of
imprisonment of 77 months. Resentencing was ordered in light of
the decision in United States v. Booker, 523 U.S. 224 (1998).
Campos-Cruz argues for the first time on appeal that his
guilty plea was not knowingly and voluntarily entered because the
district court did not advise him that he could be subject to a
two-year maximum penalty if he was convicted under 8 U.S.C.
*
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this opinion should not be published and is not precedent except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.
No. 05-51740
-2-
§ 1326(a). This issue was not raised in Campos-Cruz’s initial
appeal and is not within the scope of the limited remand for
resentencing. See United States v. Marmolejo, 139 F.3d 528, 531
(5th Cir. 1998). Nor has he shown that the determination of this
issue was clearly erroneous or resulted in a manifest injustice,
which are exceptions to the limited remand rule. See United
States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Thus, the
court will not review this claim.
Campos-Cruz further argues for the first time on appeal that
the district court erred in enhancing his sentence based on his
prior drug-trafficking offense because the Government failed to
show that he was actually the person who committed that offense.
Campos-Cruz did not challenge the enhancement on this basis prior
to his initial sentencing, and he did not raise this claim in his
initial appeal. The determination of this issue was not affected
by Booker and, thus, was not within the scope of the limited
remand. See Marmolejo, 139 F.3d at 531. Nor has Campos-Cruz
shown that this enhancement was clearly erroneous or resulted in
a manifest injustice. See Matthews, 312 F.3d at 657. Thus, this
claim is not subject to review.
Lastly, Campos-Cruz repeats his argument unsuccessfully
made in his initial appeal that his sentence under § 1326(b) is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). This argument should not be reconsidered in light of the
No. 05-51740
-3-
law of the case doctrine. See United States v. Becerra, 155 F.3d
740, 752-53 (5th Cir. 1998).
AFFIRMED.