United States v. Banda-Vasquez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50583
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS BANDA-VASQUEZ, also known as Jose Banda,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-649-ALL
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March 14, 2003
Before REAVLEY, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Jose Luis Banda-Vasquez (Banda) appeals the sentence
following his guilty-plea conviction for being found in the
United States after a prior deportation, in violation of 8 U.S.C.
§ 1326(a) and (b). He argues that his prior conviction for
transporting aliens within the United States is not an alien
smuggling offense under U.S.S.G. § 2L1.2. This argument is
*
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that this opinion should not be published and is not precedent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. 02-50583
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foreclosed by our decision in United States v. Solis-Campozano,
312 F.3d 164, 167 (5th Cir. 2002).
Next, Banda argues that the district court erred in going
beyond the statute of conviction and the charging instrument to
determine that a 16-level increase in his offense level was
warranted under U.S.S.G. § 2L1.2(b)(1)(A)(vii). He contends that
the district court must employ a categorical approach to
determine whether his prior alien transporting offense was
committed for profit.
Banda did not make this argument below, and concedes that
our review is for plain error. Assuming without deciding that
the district court and the probation officer were obliged under
our precedents to take a categorical approach, and plainly erred
in doing otherwise, we decline to correct such an error because
it did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See United States v.
McDowell, 109 F.3d 214, 216 (5th Cir. 1997). Banda does not
dispute that his prior offense was in fact committed for profit.
His only complaint is that the probation officer and district
court went the extra mile in determining the true nature of his
prior offense. In our view, this effort does not merit
correction under the plain error standard.
Banda also contends that his sentence is unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), because his
prior felony conviction was not alleged in his indictment. Banda
No. 02-50583
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acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but seeks to preserve the
issue for further review. The judgment of the district court is
AFFIRMED.