United States v. Ramirez-Gonzalez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41181
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RAMIREZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-268-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Ramirez-Gonzalez 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 in violation of 8 U.S.C. § 1326(a) and (b). Ramirez
argues that the district court erred when it increased his
offense level by sixteen levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) due to his prior conviction for
transporting undocumented aliens within the United States, which
*
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that this opinion should not be published and is not precedent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. 02-41181
-2-
he contends is not an alien smuggling offense. He acknowledges
that this argument is foreclosed by United States v. Solis-
Campozano, 312 F.3d 164 (5th Cir. 2002), petition for cert.
filed, (U.S. Mar. 6, 2003)(No. 02-9474), but seeks to preserve
the issue for possible further review. In Solis-Campozano, 312
F.3d at 167-68, we held that the term “alien smuggling offense,”
as used in U.S.S.G. § 2L1.2(b)(1)(A) includes the offense of
transporting aliens within the United States. Thus, the 16-level
increase to Ramirez’s offense level was not error.
Ramirez argues for the first time on appeal that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional because a prior felony conviction is an
element of the offense of illegal re-entry, and not merely a
sentence enhancement, and should have been charged in the
indictment and proven beyond a reasonable doubt. He acknowledges
that his argument is foreclosed by the Supreme Court’s decision
in Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998), but seeks to preserve it for possible further review in
light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90. We must follow Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000)(internal quotation marks and citation omitted).
Accordingly, the judgment of the district court is AFFIRMED.