United States v. Castillo-Penaloza

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 27, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40116
Conference Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO LOREDO-TORRES, also
known as Juan Vega Perez,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Laredo
USDC No. 5:03-CR-1265-ALL
_________________________________________________________________
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:1
Antonio Loredo-Torres pleaded guilty to illegal entry in
violation of 8 U.S.C. § 1325. The presentence report calculated
his base offense level as eight, pursuant to U.S.S.G. § 2L1.2(a).
Sixteen levels were added, pursuant to U.S.S.G.
2L1.2(b)(1)(A)(vii), because of a prior conviction for aiding and
abetting the illegal transportation of aliens. Loredo-Torres did
not object to the enhancement. Loredo-Torres received a three-
1
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this opinion should not be published and is not precedent except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.
level reduction for acceptance of responsibility, resulting in a
total offense level of 21, which resulted in a Guidelines
imprisonment range of 57 to 71 months. Because the statutory
maximum sentence was only two years, the district court sentenced
Loredo-Torres to 24 months imprisonment.
On appeal, Loredo-Torres argued that the district court erred
by relying on information contained in the presentence report to
enhance his base offense level based on a determination that he had
a prior conviction for an alien smuggling offense committed for
profit. He also argued that the district court erred when it
applied the enhancement because transportation of illegal aliens is
not “alien smuggling”. He conceded that those contentions were
foreclosed by United States v. Sanchez-Garcia, 319 F.3d 677, 678
(5th Cir. 2003), and United States v. Solis-Campozano, 312 F.3d
164, 167-68 (5th Cir. 2002). This court affirmed his sentence.
United States v. Loredo-Torres, 110 Fed. Appx. 445 (5th Cir. 2004).
The Supreme Court vacated and remanded for further consideration in
the light of United States v. Booker, 125 S. Ct. 738 (2005).
Loredo-Torres v. United States, 125 S. Ct. 1421 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
In his supplemental brief, Loredo-Torres argues that we should
pretermit the Booker issue and remand on the ground that the
Supreme Court’s decision in Shepard v. United States, 125 S. Ct.
1254 (2005), establishes that the district court misapplied the
2
Guidelines when it enhanced his sentence pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(vii) based on his prior conviction for illegal
transportation of aliens. The cases cited by Loredo-Torres in
support of this contention are distinguishable, because none of
them were remanded by the Supreme Court for further consideration
in the light of Booker. The Supreme Court remanded Loredo-Torres’s
case for the specific purpose of further consideration in the light
of Booker. When a case is remanded to this court from the Supreme
Court with specific instructions, this court must confine its
review to the limitations established by the Supreme Court’s remand
order. See Gradsky v. United States, 376 F.2d 993, 996 (5th Cir.
1967) (“Except that which we are mandated to review, our previous
rulings are the law of the case and will not now be
reconsidered.”); United States v. Lee II, 358 F.3d 315, 321 (5th
Cir. 2004) (“Absent exceptional circumstances, the mandate rule
compels compliance on remand with the dictates of a superior court
and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.”).2 Loredo-Torres’s arguments
regarding the misapplication of the guidelines are beyond the scope
of the Supreme Court’s remand and we will not consider them.
2
The Government notes that Loredo-Torres referred to the
“forthcoming Supreme Court decision in Shepard” in his petition for
writ of certiorari. Because the Supreme Court’s order in this case
was issued on February 28, 2005, and the Shepard decision was
issued on March 7, the Government ,maintains that the Court had to
have been aware of the issue in Shepard when it issued the mandate
in this case.
3
Loredo-Torres also contends that there was error under Booker
because he was sentenced under the assumption of a mandatory
Guidelines system.3 He raised this issue for the first time in his
petition for writ of certiorari. This court recently held that, in
the absence of extraordinary circumstances, the court will not
consider Booker-related arguments raised for the first time in a
petition for a writ of certiorari. United States v. Taylor, No.
03-10167, 2005 WL 1155245 (5th Cir. May 17, 2005).
Because Loredo-Torres did not raise his Booker-related
arguments in the district court, we would have reviewed them for
plain error had he raised them for the first time on direct appeal.
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). There is no plain error because, as Loredo-
Torres concedes, there is no evidence in the record indicating that
the district court would have imposed a lesser sentence under
advisory sentencing guidelines. Because Loredo-Torres has not
shown plain error, he cannot satisfy “the much more demanding
standard for extraordinary circumstances, warranting review of an
3
Loredo-Torres acknowledges that the following issues are
foreclosed by our precedent, but raises them to preserve them for
further Supreme Court review: (1) that Booker error is structural,
or at least presumptively prejudicial, thus obviating the need for
a specific showing of prejudice; and (2) that this court’s decision
in United States v. Bringier, 405 F.3d 310 (5th Cir.), cert.
denied, 126 S. Ct. 264 (2005), is inconsistent with (because it is
more stringent than) the reasonable probability standard announced
in United States v. Dominguez-Benitez, 124 S. Ct. 2333 (2004).
4
issue raised for the first time in a petition for certiorari”.
Taylor, 2005 WL 1155245, at *1.
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Loredo-Torres’s conviction and sentence.
JUDGMENT REINSTATED.
5