United States v. Lopez-Hernandez ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40805
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL LOPEZ-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-00-CR-60-1)
May 11, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,1 District
Judge.
PER CURIAM:2
For this appeal by Jose Angel Lopez-Hernandez, primarily at
issue is whether the district court plainly erred by increasing his
offense level by 16, pursuant to § 2L1.2(b)(1)(A) of the Sentencing
Guidelines. AFFIRMED.
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
2
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this opinion should not be published and is not precedent except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.
I.
In November 1995, Lopez was convicted of unlawfully carrying
a weapon on licensed premises and sentenced to ten years’
imprisonment. He was deported in April 1999. Approximately nine
months later, an INS Agent encountered Lopez at a county jail in
Texas. Lopez admitted he was a citizen of Mexico; had previously
been deported; and did not have the permission of the Attorney
General to reenter the United States.
After being charged with unlawful entry, in violation of 8
U.S.C. §§ 1326(a) and (b), Lopez pleaded guilty. Pursuant to §
2L1.2(b)(1)(A) of the Sentencing Guidelines, the Presentence
Investigation Report recommended increasing Lopez’s offense level
by 16 because he had been convicted of an aggravated felony —
unlawfully carrying a weapon on licensed premises. Lopez did not
object to such characterization of the offense. He was sentenced,
inter alia, to 70 months’ imprisonment.
II.
A.
Lopez asserts, as he did in district court, that a prior
aggravated-felony conviction is an element of the offense of entry
following deportation, and, thus, must be alleged in the
indictment. As he acknowledges, Almendarez-Torres v. United
States, 523 U.S. 224 (1998), holds to the contrary. Nevertheless,
he asserts Apprendi v. New Jersey, 530 U.S. 466 (2000), calls into
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question, but does not overrule, the holding in Almendarez-Torres.
Of course, Supreme Court precedent is binding on our court; Lopez’s
contention fails. See, e.g., United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
B.
Lopez asserts, for the first time on appeal, that his
conviction for unlawfully carrying a weapon on licensed premises is
not an “aggravated felony”. As Lopez concedes we must, we review
only for plain error. Id. at 983. Under this extremely narrow
standard of review, if there is an error, that is “clear” or
“obvious”, and that affects “substantial rights”, we have
discretion to correct such forfeited error if it affects the
fairness, integrity, or public reputation of judicial proceedings.
E.g., United States v. Cyprian, 197 F.3d 736, 741 (5th Cir. 1999),
cert. denied, 121 S. Ct. 65 (2000).
Pursuant to § 2L1.2(b)(1)(A) of the Sentencing Guidelines, the
offense level for unlawful entry is to be increased by 16 if the
defendant was previously deported after conviction for an
“aggravated felony”. U.S.S.G. § 2L1.2(b)(1)(A). “Aggravated
felony” is defined at 8 U.S.C. § 1101(a)(43). U.S.S.G. § 2L1.2,
cmt. n.1. Included in that definition is a crime of violence for
which the term of imprisonment is at least one year. 8 U.S.C. §
1101(a)(43)(F). A “crime of violence” is:
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(a) an offense that has as an element the
use, attempted use, or threatened use of
physical force against the person or property
of another, or
(b) any other offense that is a felony
and that, by its nature, involves a
substantial risk that physical force against
the person or property of another may be used
in the course of committing the offense.
18 U.S.C. § 16 (emphasis added).
Subsection (a) is inapplicable; the use, attempted use, or
threatened use of physical force is not an element of the crime of
unlawfully carrying a weapon on licensed premises. See TEX. PENAL
CODE § 46.02 (Vernon 1994). Thus, the question becomes whether the
conduct proscribed by Texas Penal Code § 46.02 involves a
substantial risk that physical force may be used.
Lopez asserts offenses found by our court to be crimes of
violence are distinguishable because they involved an act that
created a strong probability that physical injury or property
damage would occur. The Government responds that a violation of §
46.02 is usually a Class A misdemeanor, see TEX. PENAL CODE §
46.02(e) (Vernon 1994); however, if the offense is committed on
premises licensed for the sale of alcohol, it becomes a felony of
the third degree. TEX. PENAL CODE § 46.02(f) (Vernon 1994). This
enhancement, the Government contends, reflects the Texas
legislature’s concern for public safety when weaponry is introduced
into a setting where alcoholic beverages may be liberally consumed.
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Our court has not decided whether carrying a weapon on
licensed premises is a crime of violence. Cf. United States v.
Rivas-Palacios, No. 00-40508, 2001 WL 237223, at *2 (5th Cir. 9
March 2001) (possession of unregistered firearm is crime of
violence). Therefore, even assuming error, it was not “clear” or
“obvious”. See Johnson v. United States, 520 U.S. 461, 467-68
(1997) (error must be clear under current law). As a result, there
is no plain error.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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