United States v. Lopez-Moreno

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 28, 2003
• Docket: 02-41633
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 28, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41633 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO LOPEZ-MORENO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-449-1 --------------------

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

PER CURIAM:*

Alejandro Lopez-Moreno (“Lopez”) appeals his sentence

following his conviction for being found in the country after

having been deported following an aggravated-felony conviction.

8 U.S.C. § 1326. He argues that (1) the district court

impermissibly looked beyond the elements of the offense described

in Lopez’s prior indictment to determine whether the prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41633 -2-

conviction was for an alien-smuggling offense for profit

warranting the 16-offense-level increase under U.S.S.G.

§ 2L1.2(b)(1)A)(vii); (2) the prior offense was for the

transportation of aliens and not alien smuggling; and (3) the

sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court did not err in not taking a categorical

approach to determine whether Lopez’s prior conviction was an

alien-smuggling offense for profit. The court could look beyond

the elements of the prior offense to determine whether it

satisfied the requirements of § 2L1.2(b)(1)(A)(vii). See United

States v. Sanchez-Garcia, 319 F.3d 677, 678 (5th Cir. 2003);

United States v. Rodriguez-Duberney, __ F.3d __, 2003 WL 1505935,

*2-3 (5th Cir. March 25, 2003).

Lopez’s arguments that his prior conviction for transporting

aliens was not a alien-smuggling offense and that § 1326(b)(1)

and (2) are unconstitutional in light of Apprendi are foreclosed

by United States v. Solis-Campozano, 312 F.3d 164, 166-67 (5th

Cir. 2002), petition for cert. filed, No. 02-9474 (March 6,

2003), and Almendarez-Torres v. United States, 523 U.S. 224,

226-27, 239-47 (1998). The sentence imposed by the district

court is AFFIRMED.