United States v. Hinkson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40537
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OWEN GARTH HINKSON, also known as Charles M. Williams,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97-CR-134-2
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February 1, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Owen Garth Hinkson appeals his sentence for illegal
reentry into the United States after deportation. Hinkson argues
that: (1) the district court erroneously enhanced his prior
conviction for assault and battery on a police officer; (2) the
district court erred in enhancing his instant sentence pursuant to
U.S.S.G. § 2L1.2(b)(1)(A); and (3) the district court erred in
failing to void 18 U.S.C. § 1101(a)(43)(F) and U.S.S.G. §§ 2L1.2 &
4B1.2 for unconstitutional vagueness.
*
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opinion should not be published and is not precedent except under the limited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.
Hinkson’s first argument was not raised in the district
court and is, therefore, reviewed for plain error. See United
States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). There is no
merit to Hinkson’s contention that the district court enhanced his
prior conviction for assault and battery on a police officer.
Rather, the district court enhanced Hinkson’s instant sentence for
illegal reentry based on its determination that his deportation
followed his aggravated felony conviction for assault and battery
on a police officer. See U.S.S.G. § 2L1.2(b)(1)(A). The district
court did not plainly err in this regard. See Krout, 66 F.3d at
1434 (holding that plain error requires a clear or obvious error
that affected the defendant’s substantial rights).
Hinkson’s assertion that the district court erred in
applying U.S.S.G. § 2L1.2(b)(1)(A) is based on his claim that under
United States v. Delgado-Enriquez, 188 F.3d 592, 594 (5th Cir.
1999), his conviction for assault and battery on a police officer
was not an aggravated felony because it carried a sentence of only
one year. In Delgado-Enriquez, 188 F.3d at 594, this court
paraphrased 18 U.S.C. § 1101(a)(43)(F) by stating that “a ‘crime of
violence’ is an aggravated felony when it meets the definition
found in 18 U.S.C. § 16 for non-political offenses for which the
term of imprisonment is more than one year.” The Delgado-Enriquez
decision, however, did not turn on whether the offense at issue
carried an imprisonment term of one year or more than one year.
188 F.3d at 595.
Moreover, in a decision rendered prior to Delgado-
Enriquez, this court recognized that 8 U.S.C. § 1101(a)(43)(F)
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defines the term “aggravated felony” to include a crime of violence
carrying a sentence of “‘at least one year.’” See United States v.
Banda-Zamora, 178 F.3d 728, 729-30 (5th Cir. 1999). To the extent
that these two decisions conflict, Banda-Zamora, as the earlier
opinion, controls. See United States v. Jackson, 220 F.3d 635, 639
(5th Cir. 2000). Thus, the district court did not err in applying
U.S.S.G. § 2L1.2(b)(1)(A) to enhance Hinkson’s sentence.
Finally, Hinkson’s unconstitutional vagueness arguments,
which were raised for the first time on appeal, are without merit.
Hinkson’s void-for-vagueness challenge to 18 U.S.C.
§ 1101(a)(43)(F) based on a missing word in that provision was
rejected by this court in Banda-Zamora, 178 F.3d at 729-30. And
Hinkson’s unconstitutional vagueness argument with respect to
U.S.S.G. §§ 2L1.2 & 4B1.2 is unfounded because he is challenging
sentencing guidelines, not a criminal statute. See United States
v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990) (“Due process does
not mandate . . . notice, advice, or a probable prediction of
where, within the statutory range, the guideline sentence will
fall”); United States v. Arevalo-Sanchez, No. 98-20093, p. 3 (5th
Cir. Sept. 23, 1998) (unpublished). The district court did not
plainly err in failing to void 18 U.S.C. § 1101(a)(43)(F) and
U.S.S.G. §§ 2L1.2 & 4B1.2 for unconstitutional vagueness. See
Krout, 66 F.3d at 1434.
AFFIRMED.
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