United States v. Lira-Lopez ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2004
Charles R. Fulbruge III
Clerk
No. 04-40580
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SALBADOR LIRA-LOPEZ, also known as Jose Juan
Uscanga-Hernandez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-38-ALL
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Salbador Lira-Lopez, also known as Jose Juan
Uscanga-Hernandez, appeals from his guilty-plea conviction for
illegal reentry into the United States following deportation
pursuant to an aggravated-felony conviction. He first argues,
and the Government concedes, that the district court erred in
calculating his criminal history score, which affected his
criminal history category. Lira-Lopez admits that this error is
reviewed only for plain error because he failed to challenge that
*
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this opinion should not be published and is not precedent except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. 04-40580
-2-
calculation in district court. When reviewing for plain error in
the sentencing context, “this court has concluded that if the
trial judge, on remand, could reinstate the same sentence, it
will uphold the sentence imposed despite the trial court’s
error.” United States v. Leonard, 157 F.3d 343, 346 (5th Cir.
1998)(citations omitted). Despite Lira-Lopez’s arguments to the
contrary, Leonard is controlling precedent and may not be
overruled by this panel without en banc consideration or an
intervening Supreme Court opinion. See Hogue v. Johnson, 131
F.3d 466, 491 (5th Cir. 1997). Lira-Lopez admits that, even if
his criminal history score were corrected, the district court
could impose the same 46-month sentence on remand. Accordingly,
Lira-Lopez has not shown plain error. See id.Also for the first time on appeal, Lira-Lopez argues that
8 U.S.C. § 1326(b) is unconstitutional on its face and as applied
in his case because it does not require the fact of a prior
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. He thus
contends that his sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a).
Lira-Lopez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his
No. 04-40580
-3-
argument for further review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984(internal quotation marks and citation omitted).
AFFIRMED.