United States v. Vela-Ibarra ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21156
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO VELA-IBARRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-583-1
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July 25, 2002
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Rodolfo Vela-Ibarra (Vela) appeals his guilty-plea conviction
and sentence for illegal reentry following deportation in violation
of 8 U.S.C. § 1326(a) and (b)(1). He argues that the district
court erred in considering the presentence report from his previous
alien smuggling offense to determine that a 16-level increase in
his offense level was warranted under U.S.S.G.
§ 2L1.2(b)(1)(A)(vii); that the special cost-payment condition of
1
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that this opinion should not be published and is not precedent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.
his supervised release contained in the written judgment conflicts
with his oral sentence and is an impermissible delegation of
authority to the probation officer; and that the sentencing-
enhancing provisions of 8 U.S.C. § 1326(b) are facially
unconstitutional.
In asserting that the district court misapplied U.S.S.G.
§ 2L1.2(b)(1)(A)(vii), Vela contends that the reasoning from our
decisions interpreting the “career offender” guidelines, U.S.S.G.
§§ 4B1.1 and 4B1.2, should be applied in his case. In interpreting
those provisions, this court has held that only conduct charged in
the indictment, and not the underlying conduct, may be considered
in determining whether the offense is a crime of violence or a
controlled substance offense. See United States v. Gaitan, 954
F.2d 1005, 1009-11 (5th Cir. 1992); United States v. Fitzhugh, 954
F.2d 253, 254-55 (5th Cir. 1992). Importantly, our holdings in
Gaitan and Fitzhugh were based on specific language contained in
the commentary to U.S.S.G. § 4B1.2, limiting the sentencing court’s
inquiry to the conduct alleged in the indictment in determining
whether the enhancement applies. See Gaitan, 954 F.2d at 1009-11;
See Fitzhugh, 954 F.2d at 254-55.
Neither U.S.S.G. § 2L1.2 nor its commentary contains such
limiting language. Furthermore, U.S.S.G. § 1B1.3 instructs that
when determining the defendant’s “specific offense characteristics”
under Chapter Two of the Guidelines, “[c]onduct that is not
formally charged or is not an element of the offense of conviction
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may enter into the determination of the applicable guideline
sentencing range.” U.S.S.G. § 1B1.3, comment. (backg’d.).
Although Vela cites to our decisions in United States v. Zavala-
Sustaita, 214 F.3d 601 (5th Cir.), cert. denied, 531 U.S. 982
(2000), and United States v. Martinez-Cortez, 988 F.2d 1408 (5th
Cir. 1993), as support for his argument, those cases involved the
interpretation of statutes not at issue here. Zavala-Sustaita, 214
F.3d at 604-08 (interpreting “sexual abuse of a minor” under 8
U.S.C. § 1101(a)(43)(A)); Martinez-Cortez, 988 F.2d at 1410-14
(interpreting 18 U.S.C. § 924(e)). We conclude, therefore, that
the district court did not misapply U.S.S.G. § 2L1.2(b)(1)(A)(vii).
As Vela concedes, this court’s recent decision in United
States v. Warden, 291 F.3d 363, ____ (5th Cir. 2002), 2002 WL
977273, forecloses his arguments regarding the special cost-payment
condition of his supervised release.
Vela lastly contends, for the first time on appeal, that the
sentence-enhancing provisions contained in 8 U.S.C. § 1326(b) are
facially unconstitutional in light of Apprendi v. New Jersey, 530
U.S. 466 (2000). Vela acknowledges that his argument is foreclosed
by Almendarez-Torres, 523 U.S. 224 (1998), but seeks to preserve
the issue for further review.
Based on the foregoing, the district court’s judgment is
AFFIRMED.
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