United States v. Sanchez-Garcia

Fifth Circuit

United States v. Sanchez-Garcia

319 F.3d 677, 2003 U.S. App. LEXIS 1058, 2003 WL 164156

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 24, 2003

Docket02-40827

StatusPublished

Cited by18 cases

This text of 319 F.3d 677 (United States v. Sanchez-Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Sanchez-Garcia, 319 F.3d 677, 2003 U.S. App. LEXIS 1058, 2003 WL 164156 (5th Cir. 2003).

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Opinion

PER CURIAM:

Jose Sanchez-Garcia (Sanchez) appeals the sentence following his guilty-plea conviction for being found in the United States after a prior deportation, in violation of 8 U.S.C. § 1326(a) and (b). He argues that the district court erred in going beyond the statute of conviction and the charging instrument to determine that a 16-level increase in his offense level was warranted under U.S.S.G. § 2L1.2(b)(l)(A)(vii). He contends that the reasoning from our decisions interpreting the “career offender” guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2, should be applied, which limit consideration to the conduct charged in the indictment, rather than the underlying conduct of the offense. See, United States v. Gaitan, 954 F.2d 1005, 1009-11 (5th Cir.1992); United States v. Fitzhugh, 954 F.2d 253, 254-55 (5th Cir.1992).

Our holdings in Gaitan and Fitzhugh were based on specific language contained in the commentary to U.S.S.G. § 4B1.2, limiting the sentencing court’s inquiry to the conduct alleged in the indictment in determining whether the enhancement applies. Neither U.S.S.G. § 2L1.2 nor its commentary contains such limiting language. -Furthermore, U.S.S.G. § 1B1.3 instructs that when determining the defendant’s “specific offense characteristics” under Chapter Two of the Guidelines, “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3, comment, (backg’d). We conclude, therefore, that the district court did not misapply U.S.S.G. § 2L1.2(b)(l)(A)(vii).

Sanchez also contends that the sentence-enhancing provisions contained in 8 U.S.C. § 1326(b) are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Sanchez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for further review. The judgment of the district court is

AFFIRMED.

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PER CURIAM:

Jose Sanchez-Garcia (Sanchez) appeals the sentence following his guilty-plea conviction for being found in the United States after a prior deportation, in violation of 8 U.S.C. § 1326(a) and (b). He argues that the district court erred in going beyond the statute of conviction and the charging instrument to determine that a 16-level increase in his offense level was warranted under U.S.S.G. § 2L1.2(b)(l)(A)(vii). He contends that the reasoning from our decisions interpreting the “career offender” guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2, should be applied, which limit consideration to the conduct charged in the indictment, rather than the underlying conduct of the offense. See, United States v. Gaitan, 954 F.2d 1005, 1009-11 (5th Cir.1992); United States v. Fitzhugh, 954 F.2d 253, 254-55 (5th Cir.1992).

Our holdings in Gaitan and Fitzhugh were based on specific language contained in the commentary to U.S.S.G. § 4B1.2, limiting the sentencing court’s inquiry to the conduct alleged in the indictment in determining whether the enhancement applies. Neither U.S.S.G. § 2L1.2 nor its commentary contains such limiting language. -Furthermore, U.S.S.G. § 1B1.3 instructs that when determining the defendant’s “specific offense characteristics” under Chapter Two of the Guidelines, “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3, comment, (backg’d). We conclude, therefore, that the district court did not misapply U.S.S.G. § 2L1.2(b)(l)(A)(vii).

Sanchez also contends that the sentence-enhancing provisions contained in 8 U.S.C. § 1326(b) are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Sanchez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for further review. The judgment of the district court is

AFFIRMED.

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319 F.3d 677, 2003 U.S. App. LEXIS 1058, 2003 WL 164156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanchez-garcia-ca5-2003.

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