United States v. Vega-Gomez , 243 F. App'x 46 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-40429
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
JUAN JOSE VEGA-GOMEZ, also known as Juan Vega,
Defendant-Appellant
Appeal from the United States District Court For the Southern
District of Texas, Laredo Division
5:05-CR-02033
Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
Juan Vega-Gomez (“Vega-Gomez”) pleaded guilty to attempting to
reenter the United States after previously having been deported, in
violation of 8 U.S.C. § 1326(a) and (b) (2005). At sentencing,
Vega-Gomez received a 12-level enhancement based on a previous
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
conviction for delivery of a controlled substance and was sentenced
to 34 months’ imprisonment. Vega-Gomez now appeals his sentence,
arguing that (1) the district court erred by enhancing his sentence
under United States Sentencing Guidelines (“U.S.S.G.”) §
2L1.2(b)(1)(B) (2005); and (2) the enhancement provisions contained
in 8 U.S.C. § 1326(b) are unconstitutional. For the following
reasons, the sentence is AFFIRMED.
I.
On October 13, 2005, Vega-Gomez pleaded guilty, without a
written plea agreement, to attempting to reenter the United States
after previously having been deported, in violation of 8 U.S.C. §
1326(a) and (b). The presentence report (“PSR”) recommended a 12-
level enhancement because of a prior conviction for an Illinois
drug offense which called for a sentence of 13 months or less.1
This recommendation was based on an Illinois state court conviction
for delivery of cocaine in which Vega-Gomez was sentenced to 18
months’ probation.
Prior to sentencing, Vega-Gomez asserted that the 12-level
upward adjustment was unconstitutional under Apprendi v. New
Jersey2 because it enhanced his sentence beyond 2 years. In doing
so, Vega-Gomez asked the court to hold that § 1326(b) was “facially
unconstitutional.”
1
U.S.S.G. § 2L1.2(b)(1)(B).
2
530 U.S. 466 (2000).
2
At sentencing, the district court overruled Vega-Gomez’s
objection to the application of the “drug trafficking” enhancement
based on Alemdarez-Torres v. United States.3 After an adjustment
for acceptance of responsibility, Vega-Gomez’s advisory guidelines
imprisonment range was 30 to 37 months. The court sentenced him to
34 months, to be followed by a three-year term of supervised
release. This appeal followed.
Vega-Gomez raises two issues: (1) whether the district court
misapplied the Guidelines when it enhanced his offense level by 12
levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B); and (2) whether the
enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional.
II.
A.
Vega-Gomez argues that the district court erred by enhancing
his sentence by 12 levels because the Illinois conviction for
delivery of a controlled substance includes acts that cannot form
the basis for a sentencing enhancement under § 2L1.2(b)(1)(B). As
Vega-Gomez concedes, we review for plain error since he did not
object in the district court to the 12-level enhancement on the
basis that his conviction did not constitute a “drug trafficking
offense.”
Plain error exists when “(1) there was an error; (2) the error
was clear and obvious; and (3) the error affected the defendant’s
3
523 U.S. 224 (1998).
3
substantial rights.”4 Even if these conditions are met, an appellate
court may exercise its discretion to notice the error only if “the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”5
Vega-Gomez argues that a conviction for delivery of a
controlled substance under 56 ½ Ill. Comp. Stat. Ann. ¶ 1401 (West
1988)6 does not qualify as a “drug trafficking offense” because a
person can be found criminally liable for “delivery” even if the
person only solicited the delivery of drugs,7 and that solicitation
does not qualify as a “drug trafficking offense.” We assume
without deciding that Vega-Gomez is correct.
We conclude, however, that even if the district court
committed obvious error, Vega-Gomez has failed to satisfy the third
prong of plain error review. Vega-Gomez bears the burden of
proving that the error affected his substantial rights.8 To meet
that burden, he must show a reasonable probability that, but for
4
United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
5
Id. at 358-59.
6
Vega-Gomez was convicted under former Ill. Rev. Stat. 1985, ch. 56 ½, ¶ 1401(c).
7
See 38 Ill. Comp. Stat. Ann. § 5-2(c) (West 1961) (formerly Ill. Rev. Stat. 1961, ch. 38,
¶ 5-2(c)); People v. Stanciel, 606 N.E.2d 1201, 1209 (Ill. 1992); People v. Anders, 592 N.E.2d
652, 658 (Ill. App. Ct. 1992); People v. Deatherage, 461 N.E.2d 631, 633-34 (Ill. App. Ct.
1984).
8
United States v. Olano, 507 U.S. 725, 734 (1993).
4
the error, he would have received a lesser sentence.9
Vega-Gomez does not argue to us that his conviction was for
solicitation, the conduct prohibited under the Illinois statute
that may not qualify as a “drug trafficking offense.”10 Vega-Gomez
does not contend that were the district court to review allowable
evidence, that this evidence would show that the conduct for which
he was convicted was limited to solicitation and, therefore, not a
“drug trafficking offense.”11 Instead, Vega-Gomez simply shows that
without the 12-level enhancement he would have received a shorter
sentence. Without at least arguing that the drug trafficking
enhancement was ultimately wrong, Vega-Gomez cannot show that he
would have received a lesser sentence.12
Vega-Gomez has not shown that the error - if any - affected
his substantial rights. Therefore, his argument fails under plain
error review.
B.
Vega-Gomez contends that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. Vega-Gomez
9
Villegas, 404 F.3d at 364.
10
See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006); United States v.
Benavidez-Gonzalez, 202 Fed. App’x 718, 720-21 (5th Cir. 2006) (unpublished); United States v.
Gonzalez-Patino, 182 Fed. App’x 285, 287 (5th Cir. 2006) (unpublished).
11
The government argues in its brief that “Vega[-Gomez] does not argue that he was only
convicted of solicitation . . . .” Vega-Gomez, in his reply brief, does not challenge this statement.
12
See Ochoa-Cruz, 442 F.3d at 867.
5
concedes that his challenge to the constitutionality of §§
1326(b)(1) and (2) is foreclosed by Almendarez-Torres, and raises
the argument to preserve it for further review.
III.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
AFFIRMED.
6