United States v. Del Valle

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 29, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40470
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE DEL VALLE, also known as Blas Dimas Lozano,
also known as Edward Barrera, also known as FNU LNU,
Defendant-Appellant.
Consolidated with
No. 03-40487
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE DEL VALLE-MEJIA, also known as Blas Dimas Lozano,
also known as Edward Barrera, also known as Alberto
Mendoza-Meza,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-318-1
USDC No. B-02-CR-323-ALL
______________________
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Noe Del Valle ("Del Valle"), also known as Noe Del Valle-
Mejia, appeals from his guilty-plea conviction and sentence for
illegal reentry following deportation in violation of 8 U.S.C. §
1326. He also appeals from the revocation of his supervised
release, which was imposed as a result of his illegal reentry.
Del Valle has not raised in his opening brief any error with
respect to the district court's revocation of his supervised
release. Accordingly, he has abandoned that issue on appeal.1
With respect to his sentence for illegal reentry, Del Valle
argues that the district court erred in going beyond the statute of
conviction and the charging instrument for his prior offense to
determine that a 16-level increase in his offense level was
warranted under U.S.S.G. § 2L1.2(b)(1)(A)(vii). As Del Valle
concedes, this argument is foreclosed by our decision in United
States v. Sanchez-Garcia,2 where we held that a district court is
not limited to the statute of conviction and charging instrument
in determining whether an increase is warranted under §
*
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this opinion should not be published and is not precedent except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.
1
See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
2
319 F.3d 677 (5th Cir.), cert. denied, No. 03-5581, 2003
WL 21801681 (U.S. Oct. 6, 2003).
2
2L1.2(b)(1)(A)(vii). Thus, the 16-level increase to Del Valle's
offense level was not error.
Del Valle also challenges the 16-level increase in his offense
level on the basis that his 2001 conviction for transporting a
certain alien within the United States is not an “alien smuggling
offense” for purposes of § 2L1.2(b)(1)(A). He acknowledges that
this argument is foreclosed by United States v. Solis-Campozano,3
where we held that the term "alien smuggling offense" includes the
offense of transporting aliens within the United States. Thus, the
16-level increase to Del Valle's offense level was not error.
Finally, Del Valle argues that the "felony" and "aggravated
felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional
because a prior felony conviction is an element of the offense of
illegal reentry, not merely a sentence enhancement, and should have
been charged in the indictment and proven beyond a reasonable
doubt. He acknowledges that his argument is foreclosed by the
Supreme Court's decision in Almendarez-Torres v. United States,4
but he seeks to preserve it for possible further review in light of
Apprendi v. New Jersey.5 Apprendi did not overrule
3
312 F.3d 164, 167-68 (5th Cir. 2002), cert. denied, 123 S.
Ct. 1811 (2003).
4
523 U.S. 224, 239-47 (1998).
5
530 U.S. 466, 490 (2000).
3
Almendarez-Torres.6 We must follow Almendarez-Torres "unless and
until the Supreme Court itself determines to overrule it."7
AFFIRMED.
6
Id. at 489-90.
7
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000)(internal quotation marks and citation omitted).
4