United States v. Galvan-Aguilar

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 17, 2001
• Docket: 00-21043
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21043 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO GALVAN-AGUILAR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-337-ALL -------------------- August 15, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Fernando Galvan-Aguilar was convicted of illegal reentry

into the United States following deportation in violation of 8

U.S.C. § 1326. Galvan appeals his conviction and sentence on

several grounds.

Galvan challenges a sixteen-level increase to his base

offense level pursuant to U.S.S.G. § 2L1.2. Galvan’s argument

that mere possession of cocaine does not qualify as an

“aggravated felony” for purposes of § 2L1.2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21043 -2-

decision in United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94

(5th Cir. 1997).

Galvan acknowledges that his appellate argument is at least

partially foreclosed by Hinojosa-Lopez but argues that a

determination that he committed a drug-trafficking offense when

he merely possessed cocaine violates the rule of lenity. “The

rule of lenity . . . applies only when, after consulting

traditional canons of statutory construction, [a court is] left

with an ambiguous statute.” United States v. Shabani, 513 U.S.

10, 17 (1994) (emphasis added). The term “aggravated felony” was

not so ambiguous as to require an application of the rule of

lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.

Galvan’s due process argument also is unconvincing. Galvan

is challenging a sentencing guideline, not a criminal statute.

“Due process does not mandate . . . notice, advice, or a probable

prediction of where, within the statutory range, the guideline

sentence will fall.” United States v. Pearson, 910 F.2d 221, 223

(5th Cir. 1990).

Galvan also challenges the district court’s denial of his

motion to suppress a 1998 removal order. He contends that the

expedited removal under 8 U.S.C. § 1228(b) was obtained in

violation of his due process rights. “In order successfully to

collaterally attack a deportation order in a § 1326 prosecution,

the alien must show the 1) the hearing was fundamentally unfair,

2) that the hearing effectively eliminated the right of the alien

to challenge the hearing by means of judicial review of the

deportation, and 3) the procedural deficiencies caused him actual No. 00-21043 -3-

prejudice.” United States v. Benitez-Villafuerte, 186 F.3d 651,

658 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000).

Because Galvan was an alien who was also an aggravated felon, it

cannot be said that his “removal through expedited administrative

proceedings constitutes a denial of justice or was otherwise

unfair.” United States v. Hernandez-Avalos, 251 F.3d 505, 508

(internal quotation omitted). Accordingly this challenge must

fail. Benitez-Villafuerte, 186 F.3d at 658.

Finally, Galvan contends that the felony conviction that

resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)

was an element of the offense that should have been charged in

the indictment. Galvan acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for Supreme Court review in light of the decision in

Apprendi v. New Jersey, 530 U.S. 46 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 488; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Galvan’s

argument is foreclosed.

Galvan’s conviction and sentence are AFFIRMED.