United States v. Hernandez-Mesa

146 F. App'x 727

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2005
• Docket: 04-40737
• Status: Unpublished

Opinion

PER CURIAM: *

Hector Hernandez-Mesa appeals his sentence following a guilty-plea conviction for being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326.

For the first time, Hernandez-Mesa argues that the district court committed reversible plain error by adding 16 levels to his base offense level because he was convicted, prior to deportation, of a felony alien smuggling offense pursuant to 8 U.S.C. § 1324. Because he was convicted of transporting illegal aliens, an offense different from alien smuggling, Hernandez-Mesa concludes that the addition of 16 levels was unwarranted. He concedes that this argument is foreclosed by United States v. Solis-Campozano, 312 F.3d 164, 167-68 (5th Cir.2002). He nevertheless seeks to preserve the issue for possible Supreme Court review.

In Solis-Campozano, we concluded that all of the offenses listed in § 1324(a)(1)(A), which include transporting and harboring illegal aliens, are “alien smuggling” offenses for purposes of § 2L1.2(b)(l)(A)(vii). 312 F.3d at 167-68. Hernandez-Mesa’s argument is thus foreclosed. See id.

For the first time, Hernandez-Mesa argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are unconstitutional, both facially and as applied, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He correctly concedes that this argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but nevertheless he seeks to preserve the issue for possible Supreme Court review. See United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.2005) (noting that the Supreme Court in Apprendi did not overrule Almendarez-Torres), cert. denied — U.S. -, 126 S.Ct. 253, — L.Ed.2d -(2005).

Hernandez-Mesa argues for the first time in a supplemental letter brief that his sentence is illegal under United States v. Booker, - U.S. ——-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court sentenced him under the mistaken belief that the guidelines were mandatory. Review is for plain error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.2005), cert. denied — U.S. -, 126 S.Ct. 267, — L.Ed.2d -(2005). Nothing in the record indicates that the district court would have imposed a different sentence had the guidelines been advisory. Id.

Accordingly, the judgment of the district court is AFFIRMED.

* 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.