United States v. Ambrosio

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50361
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN PABLO AMBROSIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-2-1-H
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November 14, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juan Pablo Ambrosio appeals the sentence he received after he
pleaded guilty to being illegally in the United States after having
been deported, in violation of 8 U.S.C. § 1326. Ambrosio argues
that the district court erred when it enhanced his offense level
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior felony conviction
for intoxication manslaughter because intoxication manslaughter, as
it is set forth in the Texas Penal Code, is not a “crime of
*
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that this opinion should not be published and is not precedent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.
violence” under the guideline. In United States v. Rayo-Valdez,
302 F.3d 314, 316 (5th Cir. 2002), this court held that the
offenses listed in the guideline are eligible as enhancement
offenses without regard to elements under various state laws.
Manslaughter is a listed offense. Ambrosio’s argument that his
offense is not a listed offense because it was intoxication
manslaughter fails. United States v. Fry, 51 F.3d 543, 547 (5th
Cir. 1995).
Ambrosio’s argument that a prior aggravated felony should be
considered an essential element of the crime of illegal reentry
under 8 U.S.C. § 1326 also fails because the Supreme Court has
rejected this argument, and this court is bound by that precedent.
Almendarez-Torres v. United States, 523 U.S. 224 (1998); Rayo-
Valdez, 302 F. 3d at 320.
AFFIRMED.
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