United States v. Robles-Salas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-41102
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO ROBLES-SALAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-175-1
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ramiro Robles-Salas (Robles) 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. He
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). This argument is foreclosed by our
*
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that this opinion should not be published and is not precedent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. 02-41102
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decision in United States v. Sanchez-Garcia, 319 F.3d 677 (5th
Cir. 2003).
Robles again challenges the 16-level increase in his offense
level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii) on the basis
that his 1996 conviction for alien transporting is not an alien
smuggling offense. He acknowledges that this argument is
foreclosed by United States v. Solis-Campozano, 312 F.3d 164 (5th
Cir. 2002), but seeks to preserve the issue for possible further
review. In Solis-Campozano, 312 F.3d at 167-68, we held that the
term “alien smuggling offense,” as used in U.S.S.G.
§ 2L1.2(b)(1)(A) includes the offense of transporting aliens
within the United States. Thus, the 16-level increase to Robles’
offense level was not error.
Robles 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
re-entry, and 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,
523 U.S. 224, 239-47 (1998), but seeks to preserve it for
possible further review in light of Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90. We must
follow Almendarez-Torres “unless and until the Supreme Court
No. 02-41102
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itself determines to overrule it.” United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000)(internal quotation marks and
citation omitted).
AFFIRMED.