United States v. Sanchez-Medina , 71 F. App'x 395 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-41582
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS NMI SANCHEZ-MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-298-1
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tomas Nmi Sanchez-Medina appeals his 50-month sentence
following his guilty-plea conviction for being an alien
unlawfully found in the United States following deportation after
having been previously convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326. Sanchez asserts that the district
court plainly erred in assigning him three criminal history
points for his prior conviction for evading arrest. He further
maintains that 8 U.S.C. § 1326(b)(1) and (b)(2) are
*
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that this opinion should not be published and is not precedent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. 02-41582
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unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000).
Under U.S.S.G. § 4A1.2(c) and United States v. Moore, 997
F.2d 30, 33 (5th Cir. 1993), Sanchez’s 2000 evading arrest
conviction arguably should not have been counted for purposes of
his criminal history score. However, because the district court
could, on remand, impose the same 50-month sentence, Sanchez
fails to demonstrate that his substantial rights were affected by
the district court’s error in calculating his criminal history
category. United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.
2003); United States v. Leonard, 157 F.3d 343, 346 (5th Cir.
1998). Consequently, Sanchez fails to satisfy the plain error
standard of review. Id.Although Sanchez urges us to adopt the reasoning of the
Third Circuit as set forth in United States v. Knight, 266 F.3d
203 (3d Cir. 2001), it is the firm rule of this circuit that one
panel may not overrule the decisions of another without en banc
consideration or an intervening Supreme Court opinion. See Hogue
v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997). Neither condition
is present in this case. Thus, Sanchez is not entitled to any
relief, as set forth in Leonard and its progeny.
Sanchez concedes that his challenge to the constitutionality
of 8 U.S.C. § 1326(b)(1) and (b)(2) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review. Apprendi
No. 02-41582
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did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
Accordingly, the district court’s judgment is AFFIRMED.