United States v. Sierra , 219 F. App'x 369 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2007
Charles R. Fulbruge III
Clerk
No. 05-21038
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENARO SIERRA, also known as Genaro Sierra-Loviano,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-211
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Genaro Sierra appeals his guilty-plea conviction and
50-month sentence for illegal reentry following previous
deportation. Sierra contends that the district court erred in
applying a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) because the Government failed to prove that
he was convicted of a prior alien smuggling offense, and as such
a prior “aggravated felony” pursuant to 8 U.S.C. § 1326.
Because Sierra raises this issue for the first time on
appeal, the standard of review is plain error. See United States
*
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this opinion should not be published and is not precedent except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. 05-21038
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v. Olano, 507 U.S. 725, 731-32 (1993). The district court
adopted the presentence report (PSR), which recommended a 16-
level enhancement to Sierra’s sentence on the ground that he had
previously been deported following a criminal conviction for
“aiding and abetting illegal alien transportation (an alien
smuggling offense).” Sierra did not present any rebuttal
evidence or otherwise demonstrate that the information regarding
the existence of his prior conviction was unreliable. See United
States v. Valdez, 453 F.3d 252, 262 (5th Cir.), cert. denied, 127
S. Ct. 456 (2006). Moreover, at his rearraignment, Sierra agreed
to the Government’s statement that he had a 2000 conviction for
aiding and abetting illegal alien transportation, which has been
held to be an alien smuggling offense that qualifies for a 16-
level enhancement. See United States v. Solis-Campozano, 312
F.3d 164, 167-68 (5th Cir. 2002). Accordingly, the district
court did not plainly err in applying the 16-level enhancement
under § 2L1.2(b)(1)(A)(vii) to Sierra’s base offense level.
Sierra challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
be found by a jury. Sierra’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Sierra 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
No. 05-21038
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Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Sierra 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.
Sierra also contends that the district court committed two
errors in computing his criminal history score. Specifically, he
asserts that he should not have been assessed one criminal
history point under U.S.S.G. § 4A1.1(e) for his 2005 driving
while intoxicated (DWI) conviction and two points under U.S.S.G.
§ 4A1.1(b) for his prior illegal alien transportation conviction.
Because Sierra did not object to the district court’s computation
of his criminal history score, review is for plain error. See
United States v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991).
Assuming that the district court erred in the computation of
Sierra’s criminal history score, Sierra cannot show that his
substantial rights were affected because the guidelines range,
which Sierra was sentenced within, would remain the same. See
Lopez, 923 F.2d at 51.
Sierra also argues that his sentence should be vacated
because the district court based his sentence on a significant
factual error. Specifically, he contends that the district court
mistakenly believed that his DWI arrest occurred after his
No. 05-21038
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daughter’s surgery, rather than before, and thus the court erred
in not believing that his motive for returning to the United
States was because of his daughter’s surgery.
Because Sierra raises this issue for the first time on
appeal, review is for plain error. See Olano, 507 U.S. at
731-32. Whether Sierra committed the DWI offense prior to his
daughter’s surgery, rather than after, could have been resolved
upon proper objection at sentencing. Thus, Sierra cannot
demonstrate plain error as to that factual question. See Lopez,
923 F.2d at 50. Additionally, contrary to Sierra’s assertion, it
was not improper for the district court to consider Sierra’s
criminal history when imposing his sentence. See 18 U.S.C.
§ 3553(a).
Sierra challenges the district court’s denial of his motion
for a downward departure. However, this court does not have
jurisdiction to review this claim. See United States v.
Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006). Further,
Sierra cannot show that his substantial rights were affected by
the district court’s judgment ordering his sentence in the
instant case to run consecutively to an anticipated federal
revocation sentence. The judgment from Sierra’s revocation
indicates that the district court ordered Sierra’s six-month
revocation sentence to run consecutively to the 50-month federal
sentence imposed in the instant case. Thus, Sierra would still
be subject to the same sentence if this court were to vacate and
No. 05-21038
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remand for resentencing. Accordingly, the judgment of the
district court is AFFIRMED.