United States v. Vela-Ibarra

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2002
• Docket: 01-21156
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21156 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO VELA-IBARRA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-583-1 -------------------- July 25, 2002

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Rodolfo Vela-Ibarra (Vela) appeals his guilty-plea conviction

and sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326(a) and (b)(1). He argues that the district

court erred in considering the presentence report from his previous

alien smuggling offense to determine that a 16-level increase in

his offense level was warranted under U.S.S.G.

§ 2L1.2(b)(1)(A)(vii); that the special cost-payment condition of

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. his supervised release contained in the written judgment conflicts

with his oral sentence and is an impermissible delegation of

authority to the probation officer; and that the sentencing-

enhancing provisions of 8 U.S.C. § 1326(b) are facially

unconstitutional.

In asserting that the district court misapplied U.S.S.G.

§ 2L1.2(b)(1)(A)(vii), Vela contends that the reasoning from our

decisions interpreting the “career offender” guidelines, U.S.S.G.

§§ 4B1.1 and 4B1.2, should be applied in his case. In interpreting

those provisions, this court has held that only conduct charged in

the indictment, and not the underlying conduct, may be considered

in determining whether the offense is a crime of violence or a

controlled substance 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). Importantly, 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. See Gaitan, 954 F.2d at 1009-11;

See Fitzhugh, 954 F.2d at 254-55.

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

2 may enter into the determination of the applicable guideline

sentencing range.” U.S.S.G. § 1B1.3, comment. (backg’d.).

Although Vela cites to our decisions in United States v. Zavala-

Sustaita, 214 F.3d 601 (5th Cir.), cert. denied, 531 U.S. 982

(2000), and United States v. Martinez-Cortez, 988 F.2d 1408 (5th

Cir. 1993), as support for his argument, those cases involved the

interpretation of statutes not at issue here. Zavala-Sustaita, 214

F.3d at 604-08 (interpreting “sexual abuse of a minor” under 8

U.S.C. § 1101(a)(43)(A)); Martinez-Cortez, 988 F.2d at 1410-14

(interpreting 18 U.S.C. § 924(e)). We conclude, therefore, that

the district court did not misapply U.S.S.G. § 2L1.2(b)(1)(A)(vii).

As Vela concedes, this court’s recent decision in United

States v. Warden, 291 F.3d 363, ____ (5th Cir. 2002), 2002 WL

977273, forecloses his arguments regarding the special cost-payment

condition of his supervised release.

Vela lastly contends, for the first time on appeal, 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 (2000). Vela acknowledges that his argument is foreclosed

by Almendarez-Torres, 523 U.S. 224 (1998), but seeks to preserve

the issue for further review.

Based on the foregoing, the district court’s judgment is

AFFIRMED.