United States v. Lopez-Cantu ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41484
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO MAURICIO LOPEZ-CANTU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-555-1
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January 16, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Leonardo Mauricio Lopez-Cantu appeals his guilty-plea
conviction and sentence for illegally reentering the United
States after a previous deportation subsequent to a conviction
for an aggravated felony. Lopez argues that the district court
erred in relying on his aggravated-assault conviction in
increasing his offense level because Lopez was not deported after
that conviction. Lopez alternatively argues that the increase in
*
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that this opinion should not be published and is not precedent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. 01-41484
-2-
his offense level cannot be based on his prior alien-smuggling
convictions because the presentence report relied on by the
district court did not establish that those convictions included
as an element of the offense that they were committed for profit.
Lopez further argues that the district court erred in
relying on Lopez’s prior conviction for transporting undocumented
aliens because that is not an alien-smuggling conviction under
U.S.S.G. § 2L1.2. However, in his reply brief, Lopez concedes
that this argument is foreclosed by this court’s recent decision
in United States v. Solis-Campozano, 312 F.3d 164, 167-68 (5th
Cir. 2002). Lopez states that he asserts the argument to
preserve it for further review.
In Solis-Campozano, this court held that the term “alien
smuggling offense,” as used in the 16-level enhancement for a
defendant who was previously deported for an alien smuggling
offense, includes transporting aliens within the United States.
312 F.3d at 167-68. Thus, under Solis-Campozano, the 16-level
increase to Lopez’s offense level because Lopez previously was
deported for transporting aliens within the United States was not
error, plain or otherwise. Because the 16-level increase was
proper given Lopez’s prior conviction for transporting aliens
within the United States, we do not consider whether the increase
also was proper based on Lopez’s other prior convictions.
Lopez also argues for the first time on appeal that 8 U.S.C.
§ 1326(b)(2) is unconstitutional because it does not require the
No. 01-41484
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prior aggravated felony conviction to be proven as an element of
the offense. Lopez concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). He
nevertheless seeks to preserve the issue for Supreme Court review
in light of the decision in Apprendi v. New Jersey, 530 U.S. 466(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 490; see also United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202(2001). We must follow the precedent set in Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation and citation
omitted). The district court’s judgment is AFFIRMED.