United States v. Becerra-Rodriguez , 72 F. App'x 235 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 03-40149
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE BECERRA-RODRIGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-474-1
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Becerra-Rodriguez appeals the sentence he received
after he pleaded guilty to being an alien unlawfully present in
the United States subsequent to deportation following conviction
for an aggravated felony. The prior felony conviction involved
the transportation of aliens, and the district court used it to
increase Rodriguez’s base offense level.
Rodriguez argues that the district court erred when it
increased his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii)
*
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that this opinion should not be published and is not precedent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. 03-40149
-2-
because transporting undocumented aliens is not equivalent to
alien smuggling for purposes of that guideline. Rodriguez
correctly acknowledges that this issue if foreclosed by this
court’s decision in United States v. Solis-Campozano, 312 F.3d
164 (5th Cir. 2002), cert. denied, 123 S. Ct. 1311 (2003), which
held that the term “smuggling” for purposes of § 2L1.2(b)(1)(A)
includes “transporting” aliens within the United States.
Rodriguez also argues that the district court erred when it
looked beyond the indictment charging him with transporting
aliens and considered information in his presentence report to
increase his sentence under § 2L1.2(b)(1)(A)(vii). This issue is
likewise foreclosed. United States v. Sanchez-Garcia, 319 F.3d
677, 678 (5th Cir. 2003).
The judgment of the district court is AFFIRMED. Rodriguez’s
motion to supplement the record is DENIED.