United States v. Lopez-Garces , 186 F. App'x 454 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40691
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS LOPEZ-GARCES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2323-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Luis Lopez-Garces (Lopez) appeals his sentence imposed
following his guilty plea for illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(b)(2) and 6 U.S.C. §§ 202 and
507. Lopez was sentenced to 50 months of imprisonment and three
years of supervised release.
Lopez asserts for the first time on appeal that his prior
conviction for transporting illegal aliens should have resulted
in an 8-level aggravated felony enhancement pursuant to U.S.S.G.
*
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this opinion should not be published and is not precedent except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. 05-40691
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§ 2L1.2(b)(1)(C), instead of a 16-level alien smuggling offense
enhancement under § 2L1.2(b)(1)(A)(vii). Even though the
Guidelines are advisory after United States v. Booker, 543 U.S.
220 (2005), this court continues to review the sentencing court’s
interpretation and application of the Guidelines de novo and
factual findings with respect to the application of adjustments
for clear error. United States v. Villanueva, 408 F.3d 193, 202,
203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005).
Because Lopez raises this issue for the first time on
appeal, however, the standard of review is plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993). In order to show
that the district court plainly erred, Lopez must show the
existence of an error, that the error was clear and obvious, and
that the error affected his substantial rights. Id. at 732-35.
If these conditions are met, then this court will reverse the
error only if it seriously affects the “fairness, integrity, or
public reputation of judicial proceedings.” Id. at 735-37.
Under the plain language of § 2L1.2, if a prior conviction
falls in two categories of enhancements, the greater enhancement
applies. While Lopez’s prior conviction for transporting illegal
aliens may be an aggravated felony and qualify for an 8-level
enhancement, it is also an alien smuggling offense and qualifies
for a 16-level enhancement. See United States v. Solis-
Campozano, 312 F.3d 164, 167-68 (5th Cir. 2002). As a result,
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the district court did not err in applying the 16-level alien
smuggling enhancement to Lopez’s base offense level.
Lopez also asserts that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. Lopez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). See also United States
v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Lopez properly concedes that his argument
is foreclosed, but he raises it here to preserve it for further
review.
Lopez further asserts that his sentence is excessive and
therefore unreasonable under Booker. The district court
considered factors in addition to the sentencing range and
sentenced Lopez to 50 months of imprisonment. See United States
v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct.
43 (2005). This sentence is within the properly calculated
advisory guidelines range and is presumptively reasonable.
United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
Lopez has failed to demonstrate that his properly calculated
guidelines sentence was unreasonable. See id.
The district court’s judgment is AFFIRMED.