United States v. Nalasco-Amaya

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 8, 2002
• Docket: 02-20330
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20330 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ NALASCO-AMAYA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-759-ALL -------------------- November 6, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

José Nalasco-Amaya appeals his conviction and sentence for

illegal reentry. He argues that the district court erred in

calculating his criminal history points by refusing to treat his

prior sentences for unauthorized use of a motor vehicle and

burglary of a motor vehicle as “related cases” under U.S.S.G.

§ 4A1.2(a)(2). Given that the offenses did not occur

simultaneously, they were not committed against the same victim,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20330 -2-

they were not identical offenses, they were not committed at the

same geographic location, they were separated by nearly 24 hours,

and they resulted in Nalasco’s receipt of two distinct sentences,

it cannot be said that the district court erred in determining

that these were separate offenses for purposes of calculating

Nalasco’s criminal history points. United States v. Moreno-

Arredondo, 255 F.3d 198, 201, 207 (5th Cir.), cert. denied, 122

S. Ct. 491 (2001).

Nalasco correctly concedes that his remaining arguments are

foreclosed by this court’s precedent, and he raises them only to

preserve their further review. His argument that the district

court erred in treating his conviction for unauthorized use of a

motor vehicle as an aggravated felony pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C) is foreclosed by United States v. Galvan-

Rodriguez, 169 F.3d 217, 220 (5th Cir. 1999). His argument that

the district court erred in refusing to suppress evidence of his

prior deportation because the deportation proceeding violated his

due process rights is foreclosed by United States v. Benitez-

Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999). His final

argument that the aggravated felony provision of 8 U.S.C.

§ 1326(b) is an element of the offense of illegal reentry which

must be charged in the indictment and found by a jury beyond a

reasonable doubt is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998). See also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 No. 02-20330 -3-

(2001). We are bound by this court’s precedent absent an

intervening Supreme Court decision or a subsequent en banc

decision. See United States v. Short, 181 F.3d 620, 624 (5th

Cir. 1999).

AFFIRMED.