United States v. Sanchez , 110 F. App'x 398 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 1, 2004
Charles R. Fulbruge III
Clerk
No. 03-41496
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE SANCHEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-412-2
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Noe Sanchez, Jr. appeals the sentence imposed following his
jury conviction for conspiracy to transport aliens within the
United States and three counts of transporting aliens within the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(v)(I), and (v)(II). Sanchez argues that his 72-month sentence
for the conspiracy offense exceeds the statutory maximum sentence
of five years in the absence of a jury finding that the offense
was committed for private financial gain. The plain language of
*
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this opinion should not be published and is not precedent except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. 03-41496
-2-
8 U.S.C. § 1324(a)(1)(B)(i) provides that the penalty for
conspiracy to transport aliens within the United States is ten
years. The statute does not require a showing that the
conspiracy offense was committed for commercial advantage or
private financial gain. The statute further provides that the
penalty for the offense of transporting aliens under 8 U.S.C.
§ 1324(a)(1)(A)(ii), (iii), and (iv), in which the offense was
committed for the purpose of commercial advantage or private
financial gain, is ten years. Because the portion of the statute
applicable to the conspiracy offense does not require proof of
commercial advantage or private financial gain, Sanchez’s 72-
month sentence for the conspiracy offense does not exceed the
ten-year statutory maximum sentence for this offense, and
Apprendi v. New Jersey, 530 U.S. 466 (2000), is inapplicable.
Sanchez’s sentence on count one is affirmed.
Sanchez was also convicted for aiding and abetting the
transportation of illegal aliens within the United States in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). The
statutory maximum sentence for these offenses is five years.
8 U.S.C. § 1324(a)(1)(B)(ii); see also United States v. Nolasco-
Rosas, 286 F.3d 762, 767 (5th Cir. 2002). Sanchez’s 72-month
sentence for counts two, three, and four, for transporting aliens
within the United States exceeds the five-year statutory maximum
sentence for these offenses. Therefore, it is an illegal
sentence, and its imposition constitutes plain error. United
No. 03-41496
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States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000). Sanchez’s
sentence on counts two, three, and four is vacated and the case
is remanded for resentencing on those counts.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.