United States v. Lopez-Hernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2001
• Docket: 00-40805
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40805

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANGEL LOPEZ-HERNANDEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-00-CR-60-1)

May 11, 2001 Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,1 District Judge.

PER CURIAM:2

For this appeal by Jose Angel Lopez-Hernandez, primarily at

issue is whether the district court plainly erred by increasing his

offense level by 16, pursuant to § 2L1.2(b)(1)(A) of the Sentencing

Guidelines. AFFIRMED.

1 District Judge of the Eastern District of Louisiana, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

In November 1995, Lopez was convicted of unlawfully carrying

a weapon on licensed premises and sentenced to ten years’

imprisonment. He was deported in April 1999. Approximately nine

months later, an INS Agent encountered Lopez at a county jail in

Texas. Lopez admitted he was a citizen of Mexico; had previously

been deported; and did not have the permission of the Attorney

General to reenter the United States.

After being charged with unlawful entry, in violation of 8

U.S.C. §§ 1326(a) and (b), Lopez pleaded guilty. Pursuant to §

2L1.2(b)(1)(A) of the Sentencing Guidelines, the Presentence

Investigation Report recommended increasing Lopez’s offense level

by 16 because he had been convicted of an aggravated felony —

unlawfully carrying a weapon on licensed premises. Lopez did not

object to such characterization of the offense. He was sentenced,

inter alia, to 70 months’ imprisonment.

II.

A.

Lopez asserts, as he did in district court, that a prior

aggravated-felony conviction is an element of the offense of entry

following deportation, and, thus, must be alleged in the

indictment. As he acknowledges, Almendarez-Torres v. United

States, 523 U.S. 224 (1998), holds to the contrary. Nevertheless,

he asserts Apprendi v. New Jersey, 530 U.S. 466 (2000), calls into

2 question, but does not overrule, the holding in Almendarez-Torres.

Of course, Supreme Court precedent is binding on our court; Lopez’s

contention fails. See, e.g., United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).

B.

Lopez asserts, for the first time on appeal, that his

conviction for unlawfully carrying a weapon on licensed premises is

not an “aggravated felony”. As Lopez concedes we must, we review

only for plain error. Id. at 983. Under this extremely narrow

standard of review, if there is an error, that is “clear” or

“obvious”, and that affects “substantial rights”, we have

discretion to correct such forfeited error if it affects the

fairness, integrity, or public reputation of judicial proceedings.

E.g., United States v. Cyprian, 197 F.3d 736, 741 (5th Cir. 1999),

cert. denied, 121 S. Ct. 65 (2000).

Pursuant to § 2L1.2(b)(1)(A) of the Sentencing Guidelines, the

offense level for unlawful entry is to be increased by 16 if the

defendant was previously deported after conviction for an

“aggravated felony”. U.S.S.G. § 2L1.2(b)(1)(A). “Aggravated

felony” is defined at 8 U.S.C. § 1101(a)(43). U.S.S.G. § 2L1.2,

cmt. n.1. Included in that definition is a crime of violence for

which the term of imprisonment is at least one year. 8 U.S.C. §

1101(a)(43)(F). A “crime of violence” is:

3 (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (emphasis added).

Subsection (a) is inapplicable; the use, attempted use, or

threatened use of physical force is not an element of the crime of

unlawfully carrying a weapon on licensed premises. See TEX. PENAL

CODE § 46.02 (Vernon 1994). Thus, the question becomes whether the

conduct proscribed by Texas Penal Code § 46.02 involves a

substantial risk that physical force may be used.

Lopez asserts offenses found by our court to be crimes of

violence are distinguishable because they involved an act that

created a strong probability that physical injury or property

damage would occur. The Government responds that a violation of §

46.02 is usually a Class A misdemeanor, see TEX. PENAL CODE §

46.02(e) (Vernon 1994); however, if the offense is committed on

premises licensed for the sale of alcohol, it becomes a felony of

the third degree. TEX. PENAL CODE § 46.02(f) (Vernon 1994). This

enhancement, the Government contends, reflects the Texas

legislature’s concern for public safety when weaponry is introduced

into a setting where alcoholic beverages may be liberally consumed.

4 Our court has not decided whether carrying a weapon on

licensed premises is a crime of violence. Cf. United States v.

Rivas-Palacios, No. 00-40508, 2001 WL 237223, at *2 (5th Cir. 9

March 2001) (possession of unregistered firearm is crime of

violence). Therefore, even assuming error, it was not “clear” or

“obvious”. See Johnson v. United States, 520 U.S. 461, 467-68

(1997) (error must be clear under current law). As a result, there

is no plain error.

III.

For the foregoing reasons, the judgment is

AFFIRMED.