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United States v. Rivas-Castillo ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40626
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELIO RIVAS-CASTILLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-583-ALL
--------------------
December 20, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cornelio Rivas-Castillo (Rivas) appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326(a) and (b).   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 transporting aliens within the United
States is not equivalent to an alien smuggling such as to warrant
*
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that this opinion should not be published and is not precedent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. 02-40626
-2-
a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A)(vii); 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), Rivas 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 may enter into the determination of the applicable
No. 02-40626
-3-
guideline sentencing range."   U.S.S.G. § 1B1.3, comment.
(backg'd.).   Although Rivas 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).
Rivas next argues that transporting undocumented aliens
within the United States is not equivalent to alien smuggling so
as to warrant a 16-level increase under U.S.S.G.
§ 2L1.2(b)(1)(A).   However, Rivas concedes that the issue is
foreclosed by this court’s decision in United States v. Solis-
Campozano, -- F.3d --, No. 02-50079,
    2002 WL 31505539 
    at *3 (5th
Cir. November 12, 2002) and raises the issue to preserve it for
Supreme Court review.
Rivas lastly 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 
    (2000).   Rivas acknowledges that his argument is foreclosed by
Almendarez-Torres,
    523 U.S. 224 
    (1998), but seeks to preserve the
issue for further review.
No. 02-40626
-4-
Based on the foregoing, the district court's judgment is
AFFIRMED.