UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
02-40213 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ARIAS-DOMINGUEZ,
Defendant-Appellant. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (L-01-CR-994-ALL) _________________________________________________________________ November 12, 2002 Before DAVIS and BARKSDALE, Circuit Judges, and AFRICK, District Judge*.
PER CURIAM:**
This appeal challenges an enhanced sentence imposed under the
2001 amendment to Sentencing Guidelines § 2L1.2(b)(1)(A)(vii) (16-
level enhancement to offense level if defendant previously deported
for alien smuggling for profit). Primarily at issue is whether, in
enhancing Jesus Arias-Dominguez’s (Arias) sentence under the
Guideline, the district court committed reversible plain error by
* District Judge of the Eastern District of Louisiana, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. concluding that Arias’ prior conviction was for an offense
committed for profit. AFFIRMED.
I.
In August 2001, Arias pleaded guilty to one count of illegally
reentering the United States subsequent to deportation following a
conviction for an aggravated felony, in violation of 8 U.S.C. §
1326(a), (b)(2). In January 2002, he was sentenced, inter alia, to
41 months’ imprisonment. Pursuant to Guidelines §
2L1.2(b)(1)(A)(vii), as amended in November 2001, the district
court increased Arias’ offense level by 16 due to his having been
earlier deported (in 1999) for transporting aliens in violation of
8 U.S.C. 1324(a)(1)(A)(ii).
As discussed infra, in dispute is whether the record at the
sentencing hearing showed that the earlier transporting offense was
committed for profit. In any event, the district court adopted the
recommendation in the Presentence Investigation Report (instant
PSR) that the 16-level increase be imposed. As also discussed
infra, the instant PSR did not state that the prior offense was
committed for profit.
II.
Arias challenges only his sentence. First, he claims
reversible error because the enhancement was imposed in the absence
of evidence that his prior transporting offense was committed for
profit. Second, he belatedly contends (in his reply brief) that
2 transporting aliens is not an “alien smuggling offense” under the
Guidelines. Usually, when a sentence is challenged on appeal, the
district court’s findings of fact are reviewed only for clear
error; its application of the guidelines, de novo. E.g., United
States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir.), cert.
denied, 122 S. Ct. 2379 (2002). Here, however, as discussed below,
we review the first — “for-profit” — issue under the far more
restrictive plain error standard. We decline to reach the second
— “alien smuggling” — issue.
A.
Guidelines § 2L1.2(b)(1)(A)(vii) provides for a 16-level
enhancement for a prior alien smuggling offense only when it was
committed “for profit” – “payment or expectation of payment”.
U.S.S.G. § 2L1.2, cmt. n.1(B)(i)(2001). Arias raises the “for-
profit” issue for the first time on appeal.
The district court ruled that Arias was subject to the 16-
level enhancement based upon the instant PSR’s recommendation.
Arias made no “not-for-profit” objection to the portion of the PSR
recommending the 16-level enhancement; nor did he object to the
Government’s statement during the sentencing hearing that the prior
offense was committed for profit.
Accordingly, we review only for plain error. See, e.g.,
United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), cert.
denied, 531 U.S. 1100 (2001). Arias must show a clear or obvious
3 error that affects his substantial rights. E.g., United States v.
Franks, 46 F.3d 402, 404 (5th Cir. 1995). Even if he does so, we
have discretion whether to correct the plain error; generally, it
will not be corrected unless it “‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings’”. Id. at
404 (emphasis added; quoting United States v. Olano, 507 U.S. 725,
736 (1993)).
Arias contends that the district court had no evidence before
it concerning the for-profit nature of his prior conviction.
Relevant to this contention is the fact that the sentencing hearing
on 18 January 2002 also involved revocation of Arias’ supervised
release from his prior conviction. (For the latter, the district
court imposed three months’ imprisonment.) The Government
maintains that, for the revocation, the district court had before
it Arias’ PSR for his prior, transporting conviction (earlier PSR).
That earlier PSR states that the transporting offense was
committed for profit. Arias counters that, as reflected in the
docket sheet for the revocation, only three items from the prior
conviction were before the district judge — the docket sheet,
indictment, and judgment. They do not show the prior offense was
committed for profit. Moreover, as noted, Arias had been convicted
under 8 U.S.C. § 1324 (a)(1)(A)(ii); he was not convicted of
transporting aliens “for the purpose of ... financial gain”, as he
could have been under 8 U.S.C. § 1324 (a)(1)(B)(i).
4 In short, we do not know whether the earlier PSR was before
the district judge. The Government’s motion to supplement the
record on appeal with both the record and PSR from the prior
conviction is GRANTED for our use in reviewing for plain error.
As noted, during the sentencing hearing, when the Government
stated that, for the prior conviction, Arias had transported aliens
for profit, Arias did not object. Nevertheless, Arias contends
that the Government’s unsworn assertion of facts does not meet its
burden of establishing that the prior offense was committed for
profit. See United States v. Patterson, 962 F.2d 409, 415 (5th
Cir. 1992).
Arias fails, however, to factor in our extremely limited
standard of review for this issue — plain error. Again, when the
Government made that statement, Arias did not object. Based on
this record, including the description in the instant PSR of the
facts surrounding the prior conviction (including that Arias had
guided a group of aliens into, and was traveling with them in, the
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
02-40213 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ARIAS-DOMINGUEZ,
Defendant-Appellant. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (L-01-CR-994-ALL) _________________________________________________________________ November 12, 2002 Before DAVIS and BARKSDALE, Circuit Judges, and AFRICK, District Judge*.
PER CURIAM:**
This appeal challenges an enhanced sentence imposed under the
2001 amendment to Sentencing Guidelines § 2L1.2(b)(1)(A)(vii) (16-
level enhancement to offense level if defendant previously deported
for alien smuggling for profit). Primarily at issue is whether, in
enhancing Jesus Arias-Dominguez’s (Arias) sentence under the
Guideline, the district court committed reversible plain error by
* District Judge of the Eastern District of Louisiana, sitting by designation. ** 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. concluding that Arias’ prior conviction was for an offense
committed for profit. AFFIRMED.
I.
In August 2001, Arias pleaded guilty to one count of illegally
reentering the United States subsequent to deportation following a
conviction for an aggravated felony, in violation of 8 U.S.C. §
1326(a), (b)(2). In January 2002, he was sentenced, inter alia, to
41 months’ imprisonment. Pursuant to Guidelines §
2L1.2(b)(1)(A)(vii), as amended in November 2001, the district
court increased Arias’ offense level by 16 due to his having been
earlier deported (in 1999) for transporting aliens in violation of
8 U.S.C. 1324(a)(1)(A)(ii).
As discussed infra, in dispute is whether the record at the
sentencing hearing showed that the earlier transporting offense was
committed for profit. In any event, the district court adopted the
recommendation in the Presentence Investigation Report (instant
PSR) that the 16-level increase be imposed. As also discussed
infra, the instant PSR did not state that the prior offense was
committed for profit.
II.
Arias challenges only his sentence. First, he claims
reversible error because the enhancement was imposed in the absence
of evidence that his prior transporting offense was committed for
profit. Second, he belatedly contends (in his reply brief) that
2 transporting aliens is not an “alien smuggling offense” under the
Guidelines. Usually, when a sentence is challenged on appeal, the
district court’s findings of fact are reviewed only for clear
error; its application of the guidelines, de novo. E.g., United
States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir.), cert.
denied, 122 S. Ct. 2379 (2002). Here, however, as discussed below,
we review the first — “for-profit” — issue under the far more
restrictive plain error standard. We decline to reach the second
— “alien smuggling” — issue.
A.
Guidelines § 2L1.2(b)(1)(A)(vii) provides for a 16-level
enhancement for a prior alien smuggling offense only when it was
committed “for profit” – “payment or expectation of payment”.
U.S.S.G. § 2L1.2, cmt. n.1(B)(i)(2001). Arias raises the “for-
profit” issue for the first time on appeal.
The district court ruled that Arias was subject to the 16-
level enhancement based upon the instant PSR’s recommendation.
Arias made no “not-for-profit” objection to the portion of the PSR
recommending the 16-level enhancement; nor did he object to the
Government’s statement during the sentencing hearing that the prior
offense was committed for profit.
Accordingly, we review only for plain error. See, e.g.,
United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), cert.
denied, 531 U.S. 1100 (2001). Arias must show a clear or obvious
3 error that affects his substantial rights. E.g., United States v.
Franks, 46 F.3d 402, 404 (5th Cir. 1995). Even if he does so, we
have discretion whether to correct the plain error; generally, it
will not be corrected unless it “‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings’”. Id. at
404 (emphasis added; quoting United States v. Olano, 507 U.S. 725,
736 (1993)).
Arias contends that the district court had no evidence before
it concerning the for-profit nature of his prior conviction.
Relevant to this contention is the fact that the sentencing hearing
on 18 January 2002 also involved revocation of Arias’ supervised
release from his prior conviction. (For the latter, the district
court imposed three months’ imprisonment.) The Government
maintains that, for the revocation, the district court had before
it Arias’ PSR for his prior, transporting conviction (earlier PSR).
That earlier PSR states that the transporting offense was
committed for profit. Arias counters that, as reflected in the
docket sheet for the revocation, only three items from the prior
conviction were before the district judge — the docket sheet,
indictment, and judgment. They do not show the prior offense was
committed for profit. Moreover, as noted, Arias had been convicted
under 8 U.S.C. § 1324 (a)(1)(A)(ii); he was not convicted of
transporting aliens “for the purpose of ... financial gain”, as he
could have been under 8 U.S.C. § 1324 (a)(1)(B)(i).
4 In short, we do not know whether the earlier PSR was before
the district judge. The Government’s motion to supplement the
record on appeal with both the record and PSR from the prior
conviction is GRANTED for our use in reviewing for plain error.
As noted, during the sentencing hearing, when the Government
stated that, for the prior conviction, Arias had transported aliens
for profit, Arias did not object. Nevertheless, Arias contends
that the Government’s unsworn assertion of facts does not meet its
burden of establishing that the prior offense was committed for
profit. See United States v. Patterson, 962 F.2d 409, 415 (5th
Cir. 1992).
Arias fails, however, to factor in our extremely limited
standard of review for this issue — plain error. Again, when the
Government made that statement, Arias did not object. Based on
this record, including the description in the instant PSR of the
facts surrounding the prior conviction (including that Arias had
guided a group of aliens into, and was traveling with them in, the
United States), the enhancement does not constitute error that was
“clear” or “obvious”.
In any event, even if there were clear or obvious error that
affected Arias’ rights, we would decline, in our discretion, to
hold there was reversible error because, in the light of both the
record and PSR for the prior conviction, the transporting offense
was “for profit”. Therefore, upholding the sentence does not
5 “seriously affect the fairness, integrity or public reputation of
judicial proceedings”.
Arias also insists the underlying facts of his prior
conviction may not be used by the district court when determining
the applicability of § 2L1.2(b)(1)(A)(vii). He notes that, with
regard to enhancements pursuant to Guidelines § 4B1.2 (concerning
career offenders), a sentencing court’s inquiry is limited to the
conduct alleged in the prior indictment. United States v. Gaitan,
954 F.2d 1005, 1009-11 (5th Cir. 1992); United States v. Fitzhugh,
954 F.2d 253, 254-55 (5th Cir. 1992), cert. denied, 510 U.S. 895
(1993). Importantly, however, the commentary to § 4B1.2 imposed
such a limitation; there is none in § 2L1.2. See Gaitan, 954 F.2d
at 1009-11; Fitzhugh, 954 F.2d at 254-55.
Arias also relies on United States v. Zavala-Sustaita, 214
F.3d 601 (5th Cir.), cert. denied, 531 U.S. 982 (2000). At issue
was whether a violation of a state statute constituted an
“aggravated felony” for the purposes of § 2L1.2 (pre-2001
amendment). Our court held: “In making this determination, we
employ a categorical approach, considering whether the elements of
[the] offense describe ‘sexual abuse of a minor’ rather than
whether [defendant’s] specific conduct constituted ‘sexual abuse of
a minor’”. 214 F.3d at 603 (emphasis added).
Again, we review only for plain error. The use of such
underlying facts for enhancement of the offense at hand has not
6 been directly ruled on by our court. Therefore, the enhancement
cannot constitute error that is “clear” or “obvious”.
B.
In district court, Arias claimed “transporting” aliens was not
“an alien smuggling offense” under § 2L1.2(b)(1)(a)(vii). Although
he makes that general claim in his opening brief here, he fails to
present the required reasons in support. See FED. R. APP. P.
28(a)(9)(A). Instead, as noted, he waited until his reply brief to
do so. Generally, we “will not consider a claim raised for the
first time in a reply brief”. Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). We decline to consider this issue.
We note, as held in United States v. Solis-Campozano, No. 02-
50799 (5th Cir. filed _____, 2002), that “transporting” does
constitute “an alien smuggling offense” for purposes of the
Guideline at issue.
III.
For the foregoing reasons, the judgment is
AFFIRMED.