United States v. Lopez-Moreno ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 28, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41633
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO LOPEZ-MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-449-1
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Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Alejandro Lopez-Moreno (“Lopez”) appeals his sentence
following his conviction for being found in the country after
having been deported following an aggravated-felony conviction.
8 U.S.C. § 1326. He argues that (1) the district court
impermissibly looked beyond the elements of the offense described
in Lopez’s prior indictment to determine whether the prior
*
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that this opinion should not be published and is not precedent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. 02-41633
-2-
conviction was for an alien-smuggling offense for profit
warranting the 16-offense-level increase under U.S.S.G.
§ 2L1.2(b)(1)A)(vii); (2) the prior offense was for the
transportation of aliens and not alien smuggling; and (3) the
sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The district court did not err in not taking a categorical
approach to determine whether Lopez’s prior conviction was an
alien-smuggling offense for profit. The court could look beyond
the elements of the prior offense to determine whether it
satisfied the requirements of § 2L1.2(b)(1)(A)(vii). See United
States v. Sanchez-Garcia, 319 F.3d 677, 678 (5th Cir. 2003);
United States v. Rodriguez-Duberney, __ F.3d __, 2003 WL 1505935,
*2-3 (5th Cir. March 25, 2003).
Lopez’s arguments that his prior conviction for transporting
aliens was not a alien-smuggling offense and that § 1326(b)(1)
and (2) are unconstitutional in light of Apprendi are foreclosed
by United States v. Solis-Campozano, 312 F.3d 164, 166-67 (5th
Cir. 2002), petition for cert. filed, No. 02-9474 (March 6,
2003), and Almendarez-Torres v. United States, 523 U.S. 224,
226-27, 239-47 (1998). The sentence imposed by the district
court is AFFIRMED.