United States v. Padilla-Gallardo

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50269 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON ALBERTO PADILLA-GALLARDO, a.k.a. Danny Sabalas

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-95-CR-190 - - - - - - - - - - October 24, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Ramon Alberto Padilla-Gallardo appeals the sentence imposed

subsequent to his plea of guilty to reentry into the United

States after deportation. Padilla-Gallardo first argues that the

district court erred in using the statutory maximum of 18 U.S.C.

§ 1326(b)(2) because the indictment did not allege that his

deportation had been subsequent to the commission of an

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-50269 - 2 -

aggravated felony. Title 18 U.S.C. § 1326(b) is a sentence

enhancement provision rather than an independent criminal

offense; thus, it need not be alleged in the indictment. United

States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993), cert

denied, 510 U.S. 1076 (1994). In his reply brief, Padilla-

Gallardo invites the court to reconsider its decision in Vasquez-

Olvera en banc. We decline to consider the request as it is

untimely under Rule 35 of the Federal Rules of Civil Procedure

and does not comply with this court’s local rules. See 5th Cir.

R. 35.2.

Padilla-Gallardo next argues that the court erred in denying

him a two-level reduction for acceptance of responsibility. It

was not clear error for the district court to determine that

Padilla-Gallardo’s statements to an INS agent and other behavior

were inconsistent with his acceptance of responsibility.

U.S.S.G. § 3E1.1, comment. (n.3).

AFFIRMED.