United States v. Maldonado-Olivas

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 3, 2004
• Docket: 98-41117
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41117 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOAQUIN MALDONADO-OLIVAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-98-CR-98-1 -------------------- December 6, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:*

Joaquin Maldonado-Olivas appeals his sentence following his

guilty-plea conviction for illegal reentry into the country after

having been previously deported. Maldonado argues that the

district court erred by enhancing his offense level by 16 for a

prior aggravated felony. He contends that his prior offense of

transporting undocumented aliens is not the same as alien

smuggling and that the prior offense was not an aggravated felony

under 8 U.S.C. § 1101(a)(43)(N).

In cases involving a conviction for unlawful reentry into

the United States, the defendant’s offense level is increased by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41117 -2-

16 levels if the defendant previously was deported after a

conviction for an aggravated felony. § 2L1.2(b)(1)(A). The

application notes to § 2L1.2 refers to 8 U.S.C. § 1101(a)(43) for

the definition of an aggravated felony. Under § 1101(a)(43)(N)

an “aggravated felony” includes “an offense described in

paragraph (1)(A) or (2) of section 1324(a) of this title

(relating to alien smuggling)[.]”

In United States v. Monjaras-Castaneda, 150 F.3d 326, 1999

WL 721879 (5th Cir. Sept. 16, 1999), the court held that the

parenthetical “(relating to alien smuggling)” was only

descriptive of the type of offenses covered in § 1101(a)(43) and

that the offense of alien transportation was not excluded from

the definition of an aggravated felony. Maldonado’s argument is

without merit.

AFFIRMED.